Divorce v Judicial Separation v Void Marriage

Most people will be familiar with the concept of divorce, even if they are unfamiliar with the nuts and bolts of the process itself. However, there are other mechanisms by which a marriage may be brought to a formal end, such as judicial separation and annulments (void marriages).

After being married for over a year, either party to a marriage may elect to dissolve the marriage with an application for divorce. The basis of that application can only be that the applicant, ordinarily known as the Petitioner, feels that their marriage has irretrievably broken down. They are required to evidence that irretrievable breakdown to the court using one of five facts:

1. The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
2. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
3. The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the divorce petition;
4. The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the divorce petition, and the Respondent consents to a divorce being granted;
5. The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the divorce petition.

Although it is possible to seek to defend a divorce petition, in practice doing so is exceedingly rare. The Petitioner ordinarily goes on to progress the two decrees required to dissolve the marriage – Nisi and Absolute.

Practitioners within the family justice system have long campaigned for the ability of either party to a marriage to obtain a divorce without the basis of fault being involved in anyway. The Divorce, Dissolution and Separation Bill concluded its passage through the House of Commons in summer 2020 and is anticipated to come in effect in autumn 2021. Removing the issue of fault within divorce proceedings is designed to minimise hostility and acrimony at the outset of separation, enabling the parties to focus on issues concerning children and the matrimonial finances without being burdened by the allegations of fault that led to the end of the relationship.

An application for judicial separation is ordinarily started where one of the parties to the marriage has religious or cultural objections to obtaining a divorce. Additionally, judicial separation is available to those parties that have not been married for one year – which is a requirement of divorce proceedings.

Judicial separation does not dissolve a marriage, but allows the parties to avail themselves of the court to exercise its powers in relation to orders concerning the family finances, although there are some restrictions, particularly concerning pensions. Obtaining independent legal advice is essential in this area.

A petition for judicial separation can be made relying on any one of the same five facts outlined above for divorce proceedings.

With an application for judicial separation, the court does not have to consider if the marriage has broken down irretrievably. There is only one decree that is applied for – the decree of judicial separation.

As an alternative to divorce proceedings or an application for judicial separation, proceedings for nullity are relatively rare but again, may be appropriate for cases where the parties have strong religious or cultural reasons for not wishing to divorce.

A void marriage is one that will be treated by the courts as never having taken place – that is to say, it was void from the very beginning. It is not necessary to obtain a decree annulling a void marriage, but often parties seek to do so, in order to benefit from the court’s powers relating to financial provisions for themselves and their children.

It is important to make a distinction between a void marriage and an invalid marriage – an issue that was subject to case law recently. Invalid marriages generally describe those “marriages” that fail to comply with the administrative elements of a marriage ceremony under the Marriage Act 1949 and Matrimonial Causes Act 1973. The court now looks to describe such “marriages” as non-qualifying ceremonies or invalid marriages. Often these are cultural or religious ceremonies, following which, the parties consider themselves as husband and wife, but hold no standing in law. For the purposes of any dispute, it is likely that such parties might be considered as a cohabiting couple, although each scenario will turn on its own facts.

In contrast, a voidable marriage is treated as a valid marriage until a Decree Absolute of Nullity has been obtained from the court. Following the pronouncement of Decree Absolute in a voidable marriage, financial orders can take effect.

Hawkins Family Law are family law specialists, meaning we have years of experience with cases regarding divorce, separation and void marriages. If you are separated and not sure which option would be best suited to your circumstances, and if you are looking for reliable and accredited legal advice, speak to one of our team today.