Don't Risk an Invalid Divorce
Filing for divorce is one of the most difficult decisions a couple can face. Not only does it involve a potentially lengthy legal process, it’s an unsettling time, especially when there are children involved. Getting things right first time is important. Many people who decide to end their marriage are unaware that, if handled improperly, their divorce could be deemed invalid, leading to serious complications down the line.
A Valid Divorce
In England and Wales, it’s possible to divorce your partner once you have been married for at least one year and the relationship has irretrievably broken down. To prove this, it’s necessary to show that one or more of the 5 grounds for divorce apply to your situation.
Your husband or wife has had sexual relations with someone else of the opposite sex. If you have lived together for 6 months after you found out about the adultery, you will not be able to use these grounds.
- Unreasonable Behaviour
Your husband or wife has behaved unreasonably and therefore you cannot be expected to continue living with this person. Examples of such behaviour can include, domestic abuse (physical, emotional, sexual, verbal), a sexual relationship with someone of the same sex, refusing to contribute financially to the family home, excessive drunkenness or drug taking. This list is by no means exhaustive, with the courts having a fairly broad interpretation of unreasonable behaviour.
You can use the ground of desertion if you have been left by your partner for a period of more than 2 years without agreement or a ‘good’ reason. Proving the necessary intent to end the relationship which is required when claiming desertion can be difficult, so many people elect to use the grounds of 2 years’ separation instead.
- Separation for more than 2 years
If both parties agree in writing, the divorce can go ahead as long as the separation has totalled a period of over 2 years.
- Separation for at least 5 years
If there is no agreement to the divorce from one of the parties, the divorce can still go ahead if the parties have been separated for at least 5 years.
When Can a Divorce be Invalid?
If the marriage has lasted beyond the one-year mark and valid grounds for divorce are proven, then no issues occur and the divorce can continue as normal. However, it has recently been flagged up by Sir James Munby, president of the family division of the High Court of England and Wales, that some divorces may not be legally valid as the decrees nisi and absolute have been granted in breach of the 12-month requirement set out in Section 3 of the Matrimonial Causes Act 1973. Should either of the parties to an invalid divorce then choose to remarry, their new marriage would be deemed null and void. It could also have other legal implications with regard to wills and financial agreements settled upon during the divorce proceedings.
Getting things right the first time can save a lot of heartache in the long term. If you’re thinking of getting divorced, we’re here to make sure the process is handled correctly and with the utmost sensitivity.
If you are worried that your divorce may have been mishandled, don’t hesitate to get in touch with our expert Family Law team here at Rowberry Morris. We can advise you on the validity of your divorce and guide you through the necessary legal steps you might need to take should there be a problem.