Can I get a divorce?
If you are just looking for a Divorce Agreement
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You are certain that your marriage is over but don’t know whether you can get a divorce. Even if you and your partner are agreed, you will need to convince the court that you are entitled to a divorce. In order to do that, you need to fulfil the 5 conditions outlined in this article.
Whilst we have made every effort to include as much information as possible, we cannot cover every case. So, if you have any questions after reading this article, don’t forget that supportive expert advice is only a ‘mouse click’ away.
- You need to be legally married
Even if you have a marriage certificate, you are not legally married if, at the date of your marriage:
- One of you was still legally married to someone else;
- One or both of you was/were under the age of 16;
- One or both of you married as a different gender from that on his/her birth certificate (e.g. sex change operations etc.), though the law is in the process of changing on this issue;
- You were closely related to each other, including certain step-relationships.
Refusal or inability to have sex since the marriage, sexually transmitted diseases or pregnancy by another man and invalid consent (forced marriage, mental illness etc.) at the time of the marriage could also mean that the marriage is potentially invalid.
- The court needs to have jurisdiction
This is a complicated issue – as a rule of thumb if both of you are normally resident in England or Wales or have last lived together as husband and wife in England or Wales, the court will have jurisdiction.
- You need to have been married for at least one year
If not you will have to wait until you have been.
- The marriage must have broken down irretrievably
You need to declare that it has and, in addition, you have to establish one of five facts below.
- One of the five facts below must be shown
Fact 1 - Adultery
If you want to rely on this fact, you must show that your partner had sex with another person and that you find it intolerable to continue to live with him/her because of this.
If you have lived with your partner for six months after finding out about the adultery, you cannot use this fact, because you’re presumed to have forgiven him/her. The important thing here is the date of your knowledge, not the date of the adultery. For example, if your partner had sex with another person 5 years ago and you found out last week, you can still use this fact in your divorce petition. If, on the other hand, your partner had sex with another person 7 months ago, told you about it at the time and has been faithful since, you cannot use this fact – you’re presumed to have forgiven him/her.
Fact 2 - ‘Unreasonable’ behaviour
You need to show to the court that your partner behaved in such a way that you ‘could not reasonably be expected to continue to live with him/her’. It is not a question of ‘nobody could be expected to live with this person’ but of you not being able to. It’s the effect on you that’s important here. If the effect is being bored or a bit irritated with your partner or fed up with being married, that is not enough;
the behaviour has to have a strong, negative effect on you. Further information on this is available in a separate article.
Fact 3 – Desertion
To show this fact, you must show that your partner left you two years ago with the intention never to live with you again and did so without your consent.
Fact 4 - 2 years separation and consent
You must have lived apart for a period of 2 years and both agree to the divorce. If you have been living apart but had brief periods of living together, you may still be able to use this fact, provided you didn’t live together for more than 6 months and the total time from first separating to starting divorce proceedings amounts to 2 years plus any time you lived together.
Example: P. and R. separated on 30th June 2004
From the 1st January 2005 until the 31st May they lived together (5 months). They then finally separated. P. can only file for a divorce on this fact on the 1st December 2006, not the 30th June.
Fact 5 - 5 years separation
You and your partner must have lived apart for a period of 5 years. In this case, your partner’s consent is not necessary.
I can fulfil all five conditions – what do I do next?
You can either instruct a solicitor to deal with your divorce, or do it yourself. With our help you could do it at a fraction of the cost of a solicitor. There are a number of packages available which contain example forms, forms for your use and detailed guidance notes written in plain English. Forms and guidance notes are also available individually. . If you feel you need some support doing this, you can ask our family law expert for some assistance, or make use of our competitively priced all-inclusive divorce service.
I may not be legally married, what can I do?
Although not always necessary, it’s always advisable to get a declaration from the court that your marriage is ‘null and void’ – this is called an ‘annulment’. If you want to use our services, we recommend that you buy a small amount of our family law expert’s time to find out if an annulment is what’s needed in your case. She will also be able to help with drafting the relevant documentation and explain the procedure to you.
I’m not sure if the court has jurisdiction
Our family law expert will try to answer this question for you, should you wish to use her services.
I can’t show any of the 5 facts but can’t continue to live with my partner – what should I do?
You might want to consider entering into a separation agreement. This will sort out your living and property arrangements and when, after 2 years, you decide you want to divorce on Fact 4, it will make such a divorce much easier.
Our expert legal advice service can help you with this.
What is a judicial separation?
The main difference between a judicial separation and a divorce is that a judicial separation does not ‘dissolve’ the marriage. This means you cannot remarry. The conditions for obtaining a judicial separation are very similar to those for divorce and, as in a divorce, you can ask the court to make orders about your finances and/or children. As judicial separations aren’t used very often anymore, we do not stock example forms. However, you can get help from our expert legal advice service on how to turn one of our divorce example forms into one for judicial separation.
What will I need to do and what will happen in court?
This is explained in detail in. If you still have questions after reading it, you can always ask for additional advice.
What about the house, money, children?
The following articles explain the law and procedure relating to these aspects of divorce. Advice relating to your particular case is, of course, also available.
Important note about your will
When you were married, your old will become void. This does not happen on divorce or separation. If you never had a will anyway, maybe it is time that you did. We provide a range of template will documents to suit everyone, with loads of advice and over thirty easy-to-read free information articles about aspects of wills and tax.
Net Lawman separation documents can be found here.Separation Agreement
You can find links to information on wills here.Last Will and Testament Template
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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