Divorce & Annulment

It is becoming more commonplace for couples to marry after several years of cohabitation or having started a family. This reflects society’s changing attitudes and values, however what happens if one or both spouses realises they entered into marriage for the wrong reasons shortly after saying “I do”?

A marriage can either be dissolved by divorce or declared non-existent by a Decree of Nullity (commonly referred to as annulment). So what is the difference and how can each be obtained?

Either spouse can petition for divorce as long as the marriage has been in existence for 12 months or more.

The spouse who petitions for divorce (the Petitioner) must prove that the marriage has irretrievably broken down by using one of the following five facts:-
1. The Respondent has committed adultery
2. The Respondent has behaved unreasonably
3. The Petitioner and the Respondent have lived apart for at least two years and the Respondent agrees to the divorce
4. The Respondent has deserted the Petitioner
5. The Petitioner and the Respondent have lived apart for a continuous period of at least five years.

Divorce
A divorce will usually take between four-six months and only upon receipt of Decree Absolute will you be formally divorced.

It is important to consider that any Will you or your partner made prior to Decree Absolute may be affected and it may be necessary to make a new Will. You must further consider financial matters when obtaining a divorce. If upon Decree Absolute the financial aspect of your divorce has not been finalised, your right to make certain financial claims for example in relation to pensions, may be effected. Similarly, remarriage can effect your right to make certain financial claims. It is therefore important to seek legal advice before remarrying and/or the financial side of your divorce is finalised.

A Decree of Nullity can be sought as an alternative to divorce. Like divorce, either party can apply for the decree, however the application must be made within three years of the date of marriage. This time limit does not however apply to cases where the reason for the application is non-consummation of marriage.

Annulment
You must satisfy the Court that your marriage is either void from the outset or voidable, in which case it will be treated as existing until a decree is obtained.

A marriage will be considered void if:-
1. The parties are too closely related to each other; or
2. Either party was under 16 years of age at the time of marriage; or
3. Either party was already lawfully married.

Alternatively, a marriage will be considered voidable if:-
1. The marriage has not been consummated either due to the incapacity of one party or wilful refusal;
or;
2. There has been a lack of consent by one party to the marriage, for example if a party married under duress;
or;
3. At the time of marriage one party was suffering a mental disorder, such that would make them unfit for marriage.

As with divorce, upon obtaining a Decree of Nullity you should bear in mind that:-
1. A voidable marriage will not revoke a previous Will. A void marriage will not have this effect because a marriage declared void effectively never existed.
2. Upon obtaining a decree of Nullity neither spouse will be able to claim against the other’s estate if (s)he dies intestate.
3. Either party can apply for various orders in relation to property and finances as are available on divorce.

When considering whether you should petition for divorce or apply for a Decree of Nullity, you may find that you have grounds for both. There are differences between each and consideration of these will determine which remedy you seek. Essentially the differences are as follows:-

Unlike divorce, each application for a decree of Nullity must be heard in open Court, which inevitably increases each party’s legal costs and means that such cases will have an element of publicity.

A person can only petition for divorce 12 months or more after the date of marriage, whereas an application for a decree of nullity can be made within the first 12 months of marriage.

A decree of nullity declares a marriage as non-existent rather than dissolved.

Therefore whether you choose to divorce your spouse or obtain a Decree of Nullity, both will involve consideration of financial matters and any Will made prior to marriage. If you have children, you must decide with whom they will live and make arrangements to ensure that you and your spouse maintain regular contact with each child. If you are unable to reach an agreement in respect of the arrangements for your children you can ask the Court to intervene.