Due to a number of pressures within their first year of marriage, a number of couples will unfortunately find themselves separating before reaching their first anniversary.
At present, a married couple cannot begin divorce proceedings until a year has lapsed from the date of their marriage.
There are, however, instances where a marriage may fall outside of these rules based on the grounds that it is either void or voidable.
A marriage may be void under section 11 of the Matrimonial Causes Act 1973, meaning that it never technically existed if:-
- The parties are too closely related
- One of the parties was under the age of 16
- One of the parties was already lawfully married or in a civil partnership with someone else.
A marriage may be voidable, that is to say an application can be made to ‘cancel’ the marriage, under section 12 of the Matrimonial Causes Act if the following circumstances apply:-
- One of the parties refuses or is unable to consummate the marriage
- There was a lack of consent
- One party was unable to give consent due to a lack of mental capacity to do so
- One of the parties was forced into the marriage
- The female spouse was pregnant by a man other than her husband, or the male spouse had impregnated a woman other than his wife and the parties were not in possession of this knowledge at the date of marriage.
- A gender recognition certificate has been issued to one of the parties since the date of the marriage, i.e. one party has transitioned in their gender.
Unlike a void marriage under section 11, a potentially voidable marriage remains legal and valid until an application has been made by way of a nullity petition, which the Court must then approve. The procedure will then mirror that of when a divorce petition is issued.
Of course, not all marriages that fail within the first year will fall into the void or voidable category and in this instance, whilst parties will need to wait a year before petitioning for a divorce, there may be action which can be taken during this time to provide a degree of certainty post separation, particularly in relation to finances.
Financial settlements through the Court cannot be dealt with until divorce proceedings have been issued and reached the decree nisi stage. If no pre-nuptial agreement is in place dealing with the way assets are to be dealt with in the event of separation, then it may be that a couple decide to enter into a Separation Agreement in advance of reaching the year mark of their marriage in instances where their marriage has broken down.
A Separation Agreement can deal with any and all of the parties’ assets, including any property, and can also make provisions for children, including maintenance where required.
If it is achievable, a Separation Agreement may then go on to form part of a Consent Order submitted to the Court once a divorce petition has been issued, and decree nisi granted. This may help to reduce conflict and animosity when dealing with assets post-divorce and avoid the need for costly financial proceedings being issued at Court.
Separation Agreements are not only for those who are within their first year of marriage and therefore unable to begin divorce proceedings and to deal with associated financial matters. They may also be beneficial for those who want to reach some kind of financial agreement without going through the formal divorce and financial process.
If you would like to discuss any divorce, nullity or settlement agreement related matters, please contact one of our solicitors who will be happy to assist you.
All information is correct on the date of posting.