Family lawyers explain the meanings of divorce, separation and annulment and highlight the differences between them.
Divorce is the legal process of ending your marriage. The only ground for divorce under English law is the irretrievable breakdown of your marriage. This must be proved to the court by one of five facts:
- Adultery – Your spouse has committed adultery and you can no longer stand to live with them.
- Unreasonable behaviour – Your spouse has behaved in a manner you cannot accept and you can no longer live with them as a result.
- Desertion – Your spouse has deserted you for two years or more.
- Separation with consent – Your spouse agrees to a divorce and you have lived apart from one another for two years or more.
- Separation without consent – You and your spouse must live apart from one another the whole time for five consecutive years.
Usually when we talk about separation it is with reference to a couple who are no longer in a relationship as husband and wife. Often they are living apart physically but sometimes they may still be sharing the family home but living separate lives.
Sometimes people who are separated might not want to divorce. This may be for religious reasons. One example would be strict Catholics who do not believe in divorce. In such circumstances that couple could instead seek a judicial separation. This is a formal legal separation with a process very similar to divorce. The court can then also make orders regarding the couples finances in the same way that it can following a divorce, save in relation to pensions.
In order to obtain a legal judicial separation, you must send a separation petition to court. This is similar to a divorce petition and you can rely on the same reasons that are available on a divorce. It is not, however, necessary to show that the marriage has broken down beyond repair.
You cannot remarry following a judicial separation as you remain married to each other at the end of the process.
Some people separate with the intention to live apart for two years and then divorce. Couples who intend to divorce can obtain a separation deed recording their financial agreement dividing assets and on divorce convert the separation deed to a consent order. This agreement is not, however, binding in the same way as a consent order. It does not offer the same security or peace of mind.
Annulment is the ending of a marriage that is either defective or never legally valid in the first place. If you are able to prove that the marriage wasn’t legal then, in the eyes of the law, it is as if it did not happen.
As with judicial separation, some couples seek an annulment rather than a divorce for religious reasons. Often this is so that they can get married again. However, annulment is not an easy option. You have to prove that your marriage is either voidable or was void from the start. The grounds for both of these are very limited and difficult to establish.
You can annul a marriage if it is defective. A defective marriage is one that is ‘voidable’ because it meets one of the following criteria:
- Non consummation – if the marriage was never consummated by the husband and wife having sex after the wedding because one of them was unable or refused.
- No valid consent – this might be because someone was forced into getting married or did not have sufficient understanding of that they were doing. Perhaps because they were drunk or had mental health problems.
- STD – if one of the people had a sexually transmitted disease when the wedding took place.
- Pregnancy – if the woman was pregnant with another man’s baby at the time of the marriage.
You can annul a marriage if it was void to begin with. This could be for a number of reasons such as:
- Being related to one another
- Being under the age of 16
- Being in another marriage or civil partnership
Slater and Gordon Lawyers are experts on family law issues including divorce and separation. If you’re looking for legal advice in relation to divorce or separation call us on freephone 0800 916 9055 or contact us online.