Alternatives to Divorce

There are 3 basic alternatives to divorce, namely:

  • Do nothing
  • Judicial separation
  • Nullity

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Do Nothing

This is not an option we recommend. While you often have to wait a certain period of time before you can proceed with the petition (such as 2 years for separation with consent), it is our advice that once you are in a position to proceed and believe the marriage/civil partnership is over, you should start proceedings to terminate it.

If you delay proceedings it can place the upper hand with your spouse/partner. When you ask for a divorce/dissolution because you wish to re-marry or are in a new relationship, they can then add various conditions which you may feel you have to agree to otherwise the divorce/dissolution cannot take place. In the meantime the financial issues may also remain unresolved. In the past we have found this can change the appropriate settlement (claims are then brought against inheritances or windfalls received and "after-acquired" property generally, or the share a party is entitled to may increase or decrease), you are much less likely to know what assets your spouse/partner has and it may allow them to administer their finances to hide their assets.

Judicial Separation

A decree of judicial separation does not terminate the marriage/partnership, it only releases the parties from the duty to live together. It can be sought at any time, so you do not have to wait a year from the original ceremony. It is generally used by people who have religious or moral objections to a divorce/dissolution and the same financial orders can be made on judicial separation as can be made on a divorce/dissolution.

Nullity

A nullity suit can be brought at any time, you do not have to wait for a year from the original ceremony. Petitions for nullity always have to be heard in open Court. This means they cannot proceed as a paper exercise and there has to be a trial. This makes them generally more expensive and public than divorce/dissolution. However, where there are religious or moral objections to divorce/dissolution it can get round these.

There are 2 basic types of nullity, marriages/partnerships which are regarded as void from the start and marriages/partnerships that can be declared void by the Courts (known as "voidable"). If the marriage/partnership is void from the start it is treated as though it never existed. This is a reflection of the fact that it was never legal for the ceremony to take place. If it is voidable it is valid until a decree is obtained. This reflects the fact that the parties have to decide if they wish the marriage/partnership to be void or not, although any petition usually has to be pursued by the "wronged" party.

  • Grounds upon which a marriage/civil partnership is regarded as void are where:
  • One or the parties was under 16 years of age at the time of the ceremony
  • The parties are too closely related to each other
  • Either party was already lawfully married at the time of the ceremony.

Grounds upon which a marriage/civil partnership is voidable include where:

  • Either party did not consent to the ceremony
  • Either party was unable to consent due to mental disorder
  • The respondent had venereal disease at the time of the ceremony
  • The respondent was pregnant by someone other than the petitioner at the time of the ceremony
  • the marriage has not been consummated, either because one party is incapable or has refused (this does not apply to civil partnerships)

If the petitioner knew of the issue before the ceremony and proceeded anyway, then this may act as a bar to a decree. Also, any petition usually has to be brought within 3 years of the date of the ceremony, although this can be extended in appropriate cases.

The Court has all the same powers on a decree of nullity as they would for a divorce/dissolution. It does not affect legitimacy of any children, provided the parties believed the marriage/partnership was valid and the father was domiciled in England or Wales. A void marriage/partnership does not affect any will, whereas a voidable marriage/partnership will revoke a previous will as soon as a final decree is granted.