Grounds For Divorce/Dissolution Of Civil Partnership

Can you get a divorce/dissolution?

You need to have been married/in a civil partnership for at least one year. There are no exceptions to this time period. If you’ve been married/in a civil partnership for less than a year, all you can really do is separate until you’ve passed the year mark or apply for annulment if applicable. To get a divorce/dissolution after a year has passed, the marriage/civil partnership needs to be legally valid, and, usually, you must be either domiciled, or legally resident, in England or Wales for at least one year before applying for your divorce/dissolution. However, if you are domiciled and habitually resident in England or Wales and have resided here for at least six months, you can also apply for a divorce/dissolution. If you got married/entered a civil partnership abroad, you can still get divorced in England or Wales as long as one party is domiciled or habitually resident in England or Wales.

For your marriage/civil partnership to be legally valid, you need to be:

• 18 years old, or have written parental permission to marry if one or both of you are between the ages of 16 and 18
• free to marry – which means single, legally divorced/civil partnership dissolved or legally widowed
• not closely related
• have two witnesses sign the register on the day of your marriage/civil partnership

Legal language

• Application (previously petition) – the application for a divorce or dissolution of civil partnership
• Applicant (previously petitioner) – the person who applies for the divorce or dissolution of civil partnership (this can be both spouses/partners)
• Sole applicant – where only one party applies for the divorce/dissolution
• Applicant 1 and applicant 2 – where both parties apply for the divorce/dissolution
• Respondent – the spouse or civil partner of the sole applicant
• Conditional order (previously decree nisi) – given a minimum of 20 weeks from the court issuing the divorce application stating that there is no reason that you cannot get a divorce/dissolution and giving the date on which you can apply for the final order
• Final order (previously decree absolute) – the date the marriage/civil partnership formally ends – application must be at least six weeks from the date of the conditional order
• Dispute (previously defend) – disputing the application (now only possible on very narrow grounds)
• Judicial separation order (previously judicial separation decree) – document that confirms that parties to a divorce/dissolution are legally separated
• Nullity of marriage order (previously decree of nullity) – document that confirms that the marriage/civil partnership is null and void or voidable

How do you apply for a divorce or dissolution of civil partnership?

Either party can apply for a divorce or to civil partnership as a sole applicant, or they can apply together as joint applicants. In the application, either or both make a statement saying that their marriage/civil partnership has broken down irretrievably. No further evidence is needed beyond this application.

Applications can be made digitally or using a paper format. Joint applicants can agree who makes payment of the court fee, but if the application is made digitally, applicant 1 must pay the court fees, so the applicants should agree who will be applicant 1.

If the application is made digitally, respondents can respond digitally.

Where a sole application is made, this cannot be changed to joint applicants. However, joint applicants can switch to being sole applicants at either conditional or final order stages.

At least 20 weeks after the application is issued by the court, either the sole applicant or either or both applicants (if the application was joint) can apply for the conditional order. Six weeks after the date of the conditional order, either or both, or the sole applicant can apply for the final order. Upon receipt of the final order, the marriage or civil partnership is dissolved.

You may wish to delay applying for the final order until financial matters have been dealt with. The granting of the final order can have an adverse effect on some pension benefits, inheritance and financial claims. You should seek early legal advice about this and it should be addressed soon as possible.

Can you dispute a divorce/dissolution application?

Where there is a sole application, the respondent cannot dispute that the marriage/civil partnership has broken down and can only dispute the divorce/dissolution in limited circumstances. These are:

• Jurisdiction – the court cannot conduct the proceedings because, for example neither of the couple lives in England or Wales
• Validity – the couple are not legally married/in a civil partnership
• The marriage or civil partnership has already ended, for example where the couple divorced/dissolved a civil partnership outside of England or Wales.
• Fraud or failure of procedure

Can you get a divorce/dissolution when one of you lacks mental capacity?

It’s possible to get a divorce/dissolution from a spouse/civil partner who lacks the mental capacity to agree or disagree to it. To prove that someone lacks mental capacity, they must be assessed by a mental health professional under the Mental Capacity Act 2005 and deemed by the Court of Protection to be a ‘protected party’. It’s important to note that this capacity may vary or change – the person could lack capacity one week and then later be assessed another week and be found to have capacity again.
To get a divorce/dissolution from someone who lacks mental capacity, there will need to be a ‘litigation friend’ or deputy of the person who lacks mental capacity. This is someone who can act on their behalf – usually a friend or family member over 18. If nobody is willing or able to act as this litigation friend, you can apply to the court (the Official Solicitor) for one to be appointed. Once there is a litigation friend or deputy, the divorce/dissolution case would proceed in the normal way, with them acting on behalf of the spouse/civil partner.
There could be some differences in the financial settlement in a divorce/dissolution where one spouse/civil partner lacks mental capacity. Other considerations that may need to be examined in the financial settlement are the medical needs of the mentally incapacitated spouse/civil partner and any effects of finances on their future care – for example, care home fees or specialist medical care.