25 February 2021

Divorce: is it right for you?

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To obtain or apply for a divorce, certain conditions must be satisfied. Not all individuals wish to obtain a divorce or satisfy the basic requirements of doing so. It is therefore important to be aware of the alternatives to divorce.

The requirements for divorce:

The one- year rule:

As per section 3 of the Matrimonial Causes Act [1973] a divorce for the petition can only be presented to the court after one year of marriage. It is open for parties to the divorce to rely on incidents that occurred during the first year of marriage when preparing the divorce petition. However, the one-year rule itself is absolute and cannot be waived.

Jurisdiction of the courts:

The court can only hear divorce petitions if it has jurisdiction to do so. The court’s jurisdiction is governed by section 5 of the Domicile and Matrimonial Proceedings Act 1973. Most individuals satisfy section 5 (c) and (d) either because the petitioner is habitually resident in England and Wales and has lived here for at least 1 year prior to submitting the petition, or the respondent is habitually resident in England and Wales.

Ground/facts for divorce:

When applying for a divorce, one or more of the 5 facts of the divorce need to be given:

  1. Adultery – this requires evidence or a confession, and you should not have lived together as a couple for more than 6 months after you found out about the adultery. The petition should be filed by the complaining party.
  2. Unreasonable behaviour – reasons will be required setting out that your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. Unreasonable behaviour may include physical or verbal abuse.
  3. Desertion – this is where your spouse has left you for a minimum of 2 years before you apply for divorce.
  4. 2 years separation – where you and your spouse have separated for at least 2 years before applying for the divorce and you both agree to the divorce.
  5. 5 years separation – where you and your spouse have been separated for at least 5 years before applying for divorce. You can get a divorce even if your spouse disagrees.

Alternatives to divorce:

If divorce is not right for you, you may wish to consider some of the following alternatives.

Legal separation:

A legal separation allows you and your spouse to live separately without divorcing. A separation petition will need to be filed to the court.

Legal separation may be suitable for you if you:

  • have religious or moral reasons for not obtaining a divorce;
  • have been married for less than 1 year;
  • Simply want some time apart to consider whether you want to end your marriage.


You can apply to nullify your marriage at any time. This once again means that you do not have to be married for 1 year.

This may be suitable for you if you wish to have your marriage declared void or voidable.

A marriage may be void if it is not legally valid e.g. because:

  • a legal ceremony did not take place;
  • you are too closely related to your spouse;
  • one spouse was under the age of 16 at the time of marriage; or
  • one spouse was married to someone else at the time of the marriage.

A marriage is voidable if it was valid but there are some other reasons which make it voidable. This usually happens when both parties have decided that they want their marriage to be declared void by the court.

Some other reasons for making a marriage voidable may be when:

  • marriage has not been consummated;
  • you did not consent to the marriage;
  • your spouse had a sexually transmitted disease at the time of marriage; or
  • your spouse was pregnant by someone else when you got married etc.

Do nothing after separation:

If your circumstances do not allow you to apply for a divorce after separation, it may result in you doing nothing to end the marriage for the time being. In some cases, this later allows parties to apply for a divorce based on a 2- or 5-years separation.


If you feel there is room for reconciliation with your spouse, you can opt for counselling to help resolve issues in the marriage.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.

About the Author

Mahnoor has extensive experience in dealing with various types of in-country and out-of-country immigration matters. This includes advising and assisting clients on a vast spectrum of immigration applications, ranging from Entry Clearance to British citizenship.

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