Can I Get a Divorce?
When a marriage breaks down, divorce is often the only option. It is a huge decision and there’s a lot to think about before deciding to get a divorce, but you also need to know if you are eligible to get a divorce in England and Wales.
You can’t get a divorce until you’ve been married for at least one year.
Your marriage needs to be legally recognised in the UK and, in most cases, you need to have a permanent residence in England or Wales.
You’ll then need to show that your marriage has ‘irretrievably broken down’ and use one of the five ‘facts’ of divorce (also known as Grounds for Divorce) on the divorce petition. No fault divorce does not apply in England and Wales yet but it’s planned for this change to take place soon.
For initial advice get in touch with our Divorce Solicitors.
What are the Grounds for Divorce?
There is only one ground for divorce and that is that your marriage has ‘irretrievably broken down’. You will need to choose one of the five ‘facts’ to put on the divorce petition. They are:
In legal terms, this means your husband had sexual intercourse with someone of the opposite sex. This is an important point for same-sex couples looking to cite this as a ground for divorce. Furthermore, adultery can’t be given as a reason if you’ve lived together as a couple for six months after you discovered your partner’s adultery.
While unreasonable behaviour is a subjective term, ultimately it means the person applying for divorce must prove their spouse’s conduct has made them intolerable to live with. This can include anything from not sharing childcare or regularly arguing to refusing to pay for housekeeping. Such allegations don’t have be serious or extreme, and the Courts are likely to accept them at face value.
You can apply for divorce if your spouse has left you without a good reason and without your agreement. However, there are restrictions with this ground for divorce. The period of desertion must be at least two years in the past two-and-a-half years. Desertion can still be cited as a ground for divorce if you have lived together for up to six months in total during this period.
Separated for 2 Years
You’re allowed to apply for a divorce if you’ve been separated for more than two years, although both of you must agree in writing. The law says you can still be separated even if you still live in the same house, as long as you’re not doing things together as a couple, such as eating and sleeping.
Separated for 5 Years
You can apply for a divorce if you’ve been separated from your spouse for five years or more. In this instance, you don’t need the agreement of your husband and wife.
You’ll notice that the grounds for divorce that aren’t time-sensitive rely on blaming your partner for particular actions or inactions. This has proved argumentative, as some couples want to divorce amicably without assigning blame, and are unwilling to wait several years as it means they can’t move on in the meantime.
Jurisdiction is a way to decide if the Court has the right to deal with your divorce. This can be decided geographically or by case type.
There are three jurisdictions in the UK. They are:
- England and Wales
- Northern Ireland
To get a divorce in England and Wales, your marriage must be recognised under English Law. If you got married abroad, your marriage has to be recognised as a legal marriage under English law.
This means that if your marriage is not legally recognised in English law, then the divorce cannot proceed in England or Wales. There are four ways to show the English Courts your marriage is legal. You have to prove at least one of the following:
- You are or your partner are permanent residents in England or
- You’ve lived in England or Wales for at least one year before applying for divorce
- You’ve lived in England or Wales for at least 6 months and are ‘domiciled’ there
- You and your partner both live in England or
If you got married overseas and your marriage certificate isn’t in English, don’t worry. You can still apply for a divorce, but you’ll need to have your marriage certificate translated. You’ll need to provide a certified copy of the translated marriage certificate to the Court along with the original marriage certificate.
How Simpson Millar Can Help You
There are many benefits to instructing one of our Divorce Solicitors to help you get a divorce. For example, a Decree Absolute will legally end your marriage but it won’t cut the financial ties between you and your ex.
A Divorce Financial Order is a Court Order which outlines the financial arrangements between you and your ex and will be approved and issued by a Judge, after which the agreement becomes legally binding. Without a Financial Order in place, your former spouse could stake a claim to some of your wealth, including money you’ve acquired after your divorce.
We’ll help you save time and reduce the stress you’re bound to feel when going through a divorce.
For initial legal advice call our Family Law and Divorce Solicitors
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