Can I Start Divorce Proceedings?
19 July 2017
You can start divorce proceedings if you have been married for one year. Either person can start divorce proceedings, unless you are getting divorced on the grounds of adultery.
Starting Divorce Proceedings
In England and Wales, you can only start divorce proceedings if you have been married for at least one year. You may separate before this time, but in order to actually start the process of getting a divorce, you’ll have to wait until the one year anniversary of your marriage.
Normally either person can start divorce proceedings. The exception to this is if adultery is the reason for your divorce. There are five ‘facts’ of divorce, and you’ll need to state on the Divorce Petition that one of them has taken place. This is to prove that your marriage has ‘irretrievably broken down.’
The five facts of divorce are:
- Unreasonable behaviour
- You’ve separated for two years and you both agree to the divorce
- You’ve separated for five years
If you’re going to say that adultery is the reason that your marriage has irretrievably broken down, you cannot start divorce proceedings if you were the one who committed the adultery. Instead you must leave it to your husband or wife to be the divorce ‘Petitioner’, which is the person who starts the divorce proceedings.
Additionally, the adultery must have taken place within the six months before the Divorce Petition is filed, and the person who committed adultery has to give their consent. You can name the person he/she committed adultery with (called the ‘Co-Respondent’), but if you do then he/she also has to give their consent.
Choosing the Grounds for Divorce
Sometimes this can cause issues because the person who committed adultery wants to take responsibility and begin the divorce process. However, this won’t be possible if you’re going to use adultery as the grounds for your divorce, so you might want to consider using a different fact instead.
On the other hand, some people will want to use the fact of adultery because it offers an ‘instant’ divorce. By instant, we mean that you don’t have to wait a specified time before you start divorce proceedings, like you do with separation or desertion.
With regards to separation, you’ll either need to wait for two years if you both agree to the divorce, or for five years if only one of you wants to divorce. With regards to desertion, you’ll need to prove that your spouse has deserted you (meaning he/she has left you and has no intention of returning) for at least two years.
Therefore other than unreasonable behaviour, adultery is the only grounds for divorce where you can start the process straightaway.
All of this information might leave you wondering what you should write on your Divorce Petition. If you’d like help choosing the grounds for your divorce, our Divorce Solicitors can help.
For initial divorce advice call our expert Divorce Solicitors on 03306069626 or contact us online and we will call you.