Annulment and judicial separation

There are three ways in which a married couple can legally separate from each other. The first, and most common, is to ask the Court for a Decree of Divorce. The second is to ask the Court for a Decree of Nullity and the third is to ask the Court for a Decree of Judicial Separation. These are known as Matrimonial Causes or Matrimonial Orders.

The purpose of this factsheet is to provide you with some information about Decrees of Nullity and Judicial Separation.

Annulment

You will need to send a petition to the Court seeking an annulment. The person who applies to the Court for the Order is called the Petitioner. The person who receives the petition is called the Respondent.

Criteria for seeking a decree of nullity

The marriage must be either void or voidable.That means that either the marriage never existed in law or there is some legal flaw which could cause the marriage to end.

It is not necessary to seek a Decree of Nullity for a void marriage as it will be deemed to never have existed (although it may be advisable, depending upon your circumstances) but it is necessary to seek a Decree of Nullity for a voidable marriage; your marriage will continue until this is obtained.

Grounds for void and voidable marriages

Void

• The parties are close relations
• Either party is under the age of 16
• Either party is already married (and that other marriage has not been dissolved in law)
• The parties are of the same sex

Voidable

• The marriage has not been consummated owing to the incapacity of either party
• The marriage has not been consummated owing to the wilful refusal of the Respondent
• Either party to the marriage did not validly consent to it, due to duress, mistake, unsoundness of mind, or otherwise
• Either party, at the time of the marriage, was suffering from a mental disorder to the extent that they were unfit for marriage
• The Respondent was suffering from a venereal disease in a communicable form but did not advise the Petitioner
• The Respondent, at the time of the marriage, was pregnant by someone other than the Petitioner

There are no restrictions to a person seeking a Decree of Nullity based on a void marriage if they can prove one of the above grounds. There are, however, some restrictions which prevent a Decree of Nullity being granted in respect of voidable marriages. For further information please contact Simon Thomas.

Judicial separation

It is important to note that a judicial separation does not have the same effect as a divorce and you will not be able to remarry until such time as you obtain a Decree of Divorce. Also, it is important to note that judicial separation has no effect upon you or your spouse's entitlement under a Will.

The ability to seek a Decree of Judicial Separation is rarely used in practice. However, it may be preferable to a divorce in the following circumstances:

• The parties have religious or other objections to divorce but want/need the advantages of court orders regarding their affairs
• If a Decree of Divorce cannot be obtained because one year has not yet passed since the date of the marriage and the Petitioner needs to seek court orders regarding financial matters or matters relating to the upbringing of children
• If the Petitioner does not want to obtain a divorce but would like a formal recognition of separation and the Respondent is not yet able to establish one of the five facts in order to obtain a Decree of Divorce

There are two main legal consequences of obtaining a Decree of Judicial Separation:

• The Court can make orders in relation to matrimonial finances (a Financial Remedy Order) in the same way as it can for a Petitioner seeking a Decree of Divorce. The Court can also make orders in relation to the upbringing of the children of the family
• A Decree of Judicial Separation has the same effect upon succession under intestacy law as a divorce. That means that after the Decree, neither spouse has any right to inherit the property on the other's intestacy

Grounds for judicial separation

A Petition for Judicial Separation may be presented by either party if one of the five grounds of divorce (see our factsheet: Divorce) can be shown to exist.

The Petitioner does not need to prove that the marriage has irretrievably broken down, as in divorce proceedings.

Steps we will take

• We will meet with you to discuss the funding options available to you for such proceedings and will ascertain whether you will qualify for financial help from the Legal Services Commission or, if not, the likely costs involved, to include solicitors costs and court fees
• We will guide you through each step of the process. We will draft all of the necessary documents for you to progress your case and provide you with ongoing advice about each step to smoothly deal with any complications which may arise
• We will communicate with the Court on your behalf and, if necessary, your spouse or their legal representatives about your case

There may be financial repercussions which flow from a Decree Nullity/Decree of Judicial Separation. It is always prudent to take specialist legal advice from us about your financial rights before obtaining the final Decree.

Financial arrangements

There are likely to be arrangements which will need to be made to finalise your financial separation from your spouse.

Even though you are not seeking a divorce, the Court has the power to make orders in relation to financial matters as result of your marriage.

For further information please contact Simon Thomas.

Our assurance to you

We know that the breakdown of a relationship is traumatic. We are here to help, not hinder, and to do so cost-effectively and as efficiently as possible. At all stages we will advise you of the best way forward and will always keep the issue of costs and their impact on any settlement under review.

Our team of experienced and highly trained family lawyers will give you sound and comprehensive advice.

We will always consider whether mediation is the right way forward for you. We also have collaboratively trained lawyers.

Contacts

Simon Thomas, Zoe Porter, Sue Dowen, Rachael Shearmur, Penny Rogers, Catherine Reynolds, Rachel Chadwick.