A common misunderstanding is that couples must sort out their property and children’s matters before they can apply for a divorce.
This is not the case.
Either spouse can apply for a divorce once there has been 12 months separation. An application can be made jointly or by one spouse only.
Although the application is heard some weeks after filing, time is counted backwards from the date of filing rather than the date of the hearing. It is important not to jump the gun as a divorce will not be granted unless the period of separation is established. This will delay the grant of the divorce.
There is only one ground for divorce which is that the marriage has broken down irretrievably. This is established by the fact of the 12-month separation.
The 12 month period can be broken by a period where the couple reconciled provided it was less than 3 months, however, the separated periods will be added together. The reconciliation period will not be counted.
For example, a couple separate on 1 January and live apart until 30 June. They live together from 1 July to 30 September. The first period of separation is 6 months. The second 6 month period will expire on 31 March so the application can be filed on 1 April, 15 months after separation.
It is possible for couples to be separated under the one roof. The Court will consider whether the marriage relationship has broken down so that separation is established. The court will consider factors such as:
- Whether the intention to separate was communicated to the other spouse,
- Whether family members or friends were aware of the separation,
- What aspects of married life changed after separation.
Evidence from a third person such as a family member who is aware of the couple’s separation will be required.
Where the marriage has lasted less than two years there is a requirement to attend counseling.
If there are children under 18 years, the court will only grant a divorce if it is satisfied that proper arrangements have been made for them.
Parties wishing to remarry need to be aware that on the day of the hearing the order made is called a decree nisi. It does not become final for a month so that the remarriage cannot take place until that time. However, notice of the intention to remarry can be given once the decree nici is made.
For more information contact Andrew Crooke, or Dianna Beaumont in our Family Law team.
Prepared by Andrew Crooke
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
