Bharti Shah lives in North West London and is an experienced family law partner at Hodge Jones & Allen Solicitors. In this blog, Bharti offers guidance on when it’s possible to start divorce proceedings.

I recall some time ago receiving a telephone call from a newlywed friend whilst she was away on honeymoon, wanting to know if I could commence her divorce proceedings in readiness for her return home. She was somewhat taken aback with my response…which was a firm “No!”

In England and Wales, you cannot start divorce proceedings unless you have been married for at least 1 year and your marriage has irretrievably broken down. Even then you may not be able to divorce depending on the fact you rely upon. Read on below

Irretrievable break down

To get divorced, you need to show that the marriage has irretrievably broken down. This means that one or both of you cannot stay married to each other. Either of the parties to the marriage may apply to the Courts of England and Wales for the marriage to be dissolved, as long as you have been married for at least one year and the Courts have jurisdiction to deal with the application.

Petition

The application made to court to dissolve the marriage is called a Petition. The spouse who files (sends) the Petition is called the Petitioner. The other spouse is then called the Respondent.

Facts

To satisfy the Court that the marriage has broken down irretrievably, the Petitioner must rely on one of the following five facts:

The respondent has committed adultery and the Petitioner finds it intolerable to live with the respondent
The respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the respondent
The respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce
The parties have lived apart for a continuous period of at least two years immediately before the start of the divorce and the respondent consents to a decree being granted
The parties have lived apart for a continuous period of at least five years immediately before the start of a divorce

Therefore, unless, you are using fact 1 or 2, you cannot divorce one year after the date of marriage.

In the case of the Respondent deserting the Petitioner, the Petitioner will need to wait at least two years before the divorce petition can be issued.

In the case of facts 4, and 5, the Petitioner will have to wait 2 years if the other party consents to the divorce or 5 years, if consent is not forthcoming. The requisite separation period must elapse before the petition is signed and issued.

Petitioners/Applicants (in the case of civil partners) use the same paperwork, whether they are petitioning for divorce or dissolution (for civil partners). However, there is no equivalent bar on petitions for judicial separation or nullity, which people may submit at any time during the marriage/civil partnership.

Discussing a strategy to gain the best outcome

Divorce can be quite complex, not to mention the emotional stress and anxiety that comes with it. Therefore, it’s sensible to seek legal advice at the earliest opportunity before any potential proceedings to ensure you receive expert advice as to how to start your divorce in the most beneficial legal jurisdiction. An early conversation with a specialist family law solicitor will discuss the best strategy for your particular situation and how to save on legal costs and minimise stress levels for you.

Bharti Shah and the Family Law team at NW1-based law firm, Hodge Jones & Allen Solicitors regularly advise parents on family law matters such as divorce. To get in touch with Bharti and the team for an initial confidential consultation, visit our website or call us on 0808 1636 716.