If you are considering a separation during a marriage and are thinking about the next steps, you should make sure you understand all of your options. If a reconciliation does not happen following legal separation then you may well be thinking about divorce or annulment and knowing the difference between the two is important before you take any legal steps to move forward with one or the other.
You can only apply for a divorce in England and Wales if you have been married for over 12 months. If you have not been married for this long then you cannot divorce and would have to consider annulment. A divorce must go through the Courts – although if you can agree the basis of the divorce then neither of you would need to physically attend Court. There is only one ground for divorce – the marriage must have ‘irretrievably broken down’. This means that you and your spouse will not get back together. To then prove this to the Court, you must rely on a single divorce ‘fact’. There are five facts you choose from:
- Unreasonable behaviour (behaviour by your spouse which means you no longer wish to live with them)
- Adultery (your spouse has had sex with another person)
- Two years separation with consent of your spouse
- Five years separation but consent of your spouse is not needed
- Desertion (your spouse has abandoned the marriage)
More than one fact may apply, but you choose one. Ellis Hass Family Law experts will be addressing these facts in more detail in future blogs. Follow us on Facebook, Twitter or LinkedIn to not miss out on this.
Once your divorce concludes you will obtain a ‘decree absolute’ which is the Court document which confirms that you are divorced from your former spouse.
Annulment requires no period of marriage before you can apply. You can apply for annulment, in theory, the day after your marriage. The basis on which you annul a marriage will depend on whether the marriage is viewed by law as ‘void’ (i.e. never existed) or ‘voidable’ (i.e. existed but does no longer):
So what would be classed as grounds for annulment?
- Prohibited degrees of relationship (you are too closely related to the person you married)
- Age (you or your spouse were under 16 years of age)
- Existing marriage/polygamy (one of you was already married or in a civil partnership)
- Non-consummation (you have not had sex with your spouse since marriage)
- Lack of consent (you could not properly consent to the marriage – e.g. a forced marriage or intoxication by drink or drugs at the time of marriage)
- Communicable disease (the other person had an STD when you married)
- Pregnancy (your spouse was pregnant by another person when you got married)
At the end of the annulment process, you will obtain a ‘decree of nullity’ which is the Court document which confirms that your marriage was either ‘void’ and never existed, or no longer exists if the marriage was ‘voidable’. At that point, you are no longer married to your spouse in the eyes of the law.