The divorce petition, or petition for the dissolution of a civil partnership, cannot be filed at court before a year has elapsed since the date of the marriage or civil partnership ceremony. This rule cannot be waived by the courts and is enshrined in two pieces of legislation: Matrimonial Causes Act 1973 and Matrimonial and Family Proceedings Act 1984. The courts adopt this strict approach in order to discourage parties from making a hasty decision to end a particularly short marriage.
Provided that a satisfactory divorce petition can be prepared, the petition may be filed at court a year and a day after the marriage, based on incidents that occurred within the first year of marriage, e.g. adultery or unreasonable behaviour during the first year of marriage. However, if the divorce petition is based on adultery or unreasonable behaviour, the prospective petitioner should be wary of cohabiting with their spouse for a period (or cumulative periods) exceeding six months after discovering the adultery or the date of the last episode of unreasonable behaviour, as this may prejudice the divorce proceedings.
If it is clear that the marriage or civil partnership has irretrievably broken down and the client wishes to proceed with the divorce, the divorce petition can be prepared within the first year and the contents agreed with the respondent’s solicitor. The divorce petition can then be placed on file, ready to be dated, signed and filed at court after the one year from the date of the marriage has elapsed.
However, there may be alternative avenues that a client can consider if they must dissolve the marriage or civil partnership within the first twelve months.
Firstly, a party can apply for a decree of judicial separation or a decree of nullity, neither of which are subject to the one year rule. Adopting this approach also provides the added advantage of enabling the parties to resolve matters relating to the matrimonial finances and children once the respective decree has been obtained.
Secondly, a party can apply for maintenance or a lump sum under section 27 of the Matrimonial Causes Act 1973 or section 2 of the Domestic Proceedings and Magistrates Courts Act 1978, if the other party has failed to provide reasonable maintenance for them, or has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family. Such applications were successfully made in the recently considered case of Howells v Howells .
Finally, if a party is at risk of domestic violence, they are afforded protection from Part IV of the Family Law Act 1996 and the provisions for non-molestation and occupation orders.
Serving Bedford and London, our lawyers can help you with your family law and divorce matters. If you are considering starting divorce proceedings and would like to discuss your options with an experienced family solicitor, contact us on 01234 889777 or 0207 177 9777 for a free consultation.