We’ve been married less than a year – can we get a divorce?
The short answer is no, you can’t. You have to be married for a least a year before you can start divorce proceedings. Once you have been married for one year, you can start proceedings by issuing a divorce petition. However, there are other steps you can take.
A Separation Agreement
In the meantime, you could get a separation agreement drawn up ahead of filing divorce papers. This is a written agreement that typically sets out the financial arrangements that you agree to put in place while you are separated.
This can cover a range of areas such as:
- What provision there will be for maintenance and /or financial support for children and childcare provision
- Arrangements for the family home including what will happen if it’s sold
- Who will pay the mortgage or rent and the household bills
- How debts, loans or overdrafts are to be dealt with
- What happens to jointly-purchased items such as cars or furniture
- How financial assets such as savings and investments are to be apportioned.
The benefit of a separation agreement in this case is that it can represent a final financial agreement that can be presented to the court when you are in a position to start divorce proceedings. You will both know where you stand financially, and this can take some of the heat out of the breakdown of the relationship. It also confirms that you both acknowledge the relationship has ended, so your ex-partner can allege that you’ve deserted them, and vice versa.
A word of advice – to help ensure that a separation agreement isn’t challenged and is upheld in court, you will both need to be totally transparent about your finances, take independent legal advice and the agreement needs to be fair. This is referred to as ‘financial disclosure’. If you’re not open and honest about matters like savings, investments, property and debts and don’t make full financial disclosure, then you won’t be able to rely on your settlement agreement in the future.
A Judicial Separation
If you and your partner are unable to agree on a settlement agreement, you could seek a Decree of Judicial Separation from the Family Court. This follows the same process as divorce proceedings and can be issued within the first 12 months of the marriage.
A judicial separation has three main effects. You would no longer be obliged to live together. The Court could make an order in respect of finances if you are unable to do so. If either of you were to die intestate, your property would be dealt with as if your spouse or civil partner were dead. However, it’s important to note that in contrast to what would happen on divorce, your Will remains unaffected and no pension orders can be made. So, if you had a Will in place and had left property to your spouse of civil partner, then they would still receive it, despite the judicial separation.
You need to be aware that in the case of both a judicial separation and a separation agreement, you will still be married to each other. You should certainly consider revising your Will.
How we can help
If you need advice on divorce, our Family department are here to help you.
Email Joyti Henchie to arrange a confidential discussion of your situation.