Bars to Divorce: Can the Court refuse to grant a Divorce?

On 6^th April 2022 the ‘No Fault Divorce’ came into force which meant the ‘blame game’ in Divorce had officially ended. This was the biggest change to the Divorce, Dissolution and Separation Act 2020 for over half a century! The reason  for the change was to allow separating couples to focus on the important decisions involving their children and finances, removing or at least minimising the conflict between them.

A Divorce Application can now be made jointly or in one person’s sole name. The new law prevents a person from maliciously contesting a Divorce.

When you submit your Divorce Application online, there are certain facts that must be considered before your application can be granted and you can be sure of getting a Divorce.

There is one ground for Divorce and that is the irretrievable breakdown of the marriage. You are no longer required to set out the facts of the irretrievable breakdown (the marriage cannot be saved) since the ‘No-Fault Divorce’ came into effect.

So why might the Court refuse your Divorce Application?

There are two main reasons why a Divorce Application might be unsuccessful but there are other circumstances, in which the Court might refuse to grant a Divorce too.

• If you have been married for less than one year, you cannot apply for a Divorce, even if there is irretrievable breakdown. You have to wait until 12 months from the date of your marriage or apply for an Annulment or Judicial Separation should that be necessary.
• It is important to consider which jurisdiction, the country in which your Divorce should be dealt with. The Courts of England and Wales can only deal with Divorce Applications that have relevant jurisdiction. You must have a connection to the country you wish to Divorce in.

To Divorce in a Court in England and Wales, you or your spouse must have one of the following connections: habitual residence, domiciled, nationality or if the marriage took place in England or Wales.

English and Welsh courts will have jurisdiction to accept your application if:

• You and your spouse have habitual residence or are domiciled in England and Wales.
• You and your spouse were habitual residents, and one spouse still resides here.
• Either one of you is habitually resident in England and Wales and the Applicant has lived here for a minimum of one year immediately prior to filing the application.
• The Applicant is domiciled in England and Wales and has been residing here for a minimum of six months before filing the application.

When making your application you must choose the relevant reason why the court can deal with the case (jurisdiction).

You may be able to Divorce in different countries so it is important to seek legal advice to consider what impact this could have on the division of your finances and enable you to make an informed decision on which country you wish to Divorce in.

For your Divorce to be granted your marriage must be legally recognised in England and Wales. Some religious ceremonies are not recognised by the Law in England and Wales.

If you or your spouse refuse to have your marriage dissolved in the eyes of your religion, the Court have the ability to order that a legal Divorce cannot take place until a Religious Divorce has been agreed.

If the Court believes there is a reasonable possibility of a reconciliation between parties the Court may adjourn proceedings for such a period as it deems fit, to enable attempts to be made to effect a reconciliation.

If you have any questions about your own circumstances and how to go about getting a Divorce, contact Andrew Isaacs Law for confidential expert advice. You might feel scared about making that phone call but don’t worry, you are not committing yourself to anything, and it might just be the first step towards getting your life back.

Roxanne Woolliams – Family Solicitor

17.11.22