I have been married for less than 12 months – how can I get a divorce?

Going through a relationship breakdown is challenging — you may be concerned about the legal position particularly if you’ve only been married or in a civil partnership for a short time. 

Under current law, you must have been married or in a civil partnership for at least 12 months before you can apply for a divorce or dissolution of a civil partnership. However, there are alternative options available to couples who separate during that first year.

In this guide, Amy Harris, Legal Director, and Caitlyn Oaten, Paralegal — both in our family team — explore the available options, from annulment and judicial separation to separation agreements, and what to consider if you're deciding whether to wait for divorce.

Can I get a divorce within the first year?

In order for a couple who are married or in a civil partnership to apply for a divorce (or dissolution of a civil partnership), they must have been married or in a civil partnership for a period of at least one year.

There are different options available to a couple who wish to separate before one year has passed. Some of these options, which may not be available to all couples, will legally end the marriage, and some other options will not but will allow the couple to move forward. 

For couples who decide to wait one year for a divorce, it may be sensible to consider a separation agreement — which can help them reach an interim agreement around how their finances should be managed until they are able to formally divorce or dissolve their partnership.

Whether the marriage could be void or voidable

A married couple or civil partners can apply for annulment — also known as nullity — to end their marriage or civil partnership. This can be sought at any time and is an option for couples who have been married or in a civil partnership for less than one year.

To apply for annulment, you must be able to show either that the marriage or civil partnership was never legally valid (a void marriage), or that it was legally valid but meets one of the legal grounds that makes it voidable.

‘Void’ marriages 

This is where a marriage/civil partnership is not legally valid. The Court may rule that the marriage/civil partnership is void if one of the following circumstances apply:

• You are closely related to one another and fall within the prohibited degrees of relationship. A prohibited degree of relationship includes where you are related by blood or have a relationship through a marriage.
• Either of you were under the age of 18 at the time of the marriage.
• If at the time of the marriage/civil partnership either of you were already married or in a civil partnership.
• If the marriage/civil partnership is deemed polygamous and was entered into outside of England and Wales with one party living in England and Wales.

If the court determines that the marriage/civil partnership is void the marriage/civil partnership will be treated as never having taken place.

‘Voidable’ marriages

This is where the marriage/civil partnership is legally valid but there is an element to it which declares it invalid therefore making it voidable. The following elements constitute as a ground for the marriage/civil partnership to be voidable:

• The marriage has not been consummated. Either due to one individual being incapable of consummating a marriage as a result of a physical or psychological condition. Or due to a wilful refusal of one spouse to consummate the marriage. (Although this does not apply to civil partnerships).
• Where the person to the marriage/civil partnership did not validly consent to it. An individual will not have validly consented to a marriage if one of the following applies –

1. Where an individual has been forced into marriage/civil partnership.
2. Where an individual lacks capacity and is incapable of understanding the nature of a marriage/civil partnership contract which they were entering into.
3. Where there has been a mistake as to the identity of an individual, or
4. Where a party was under the influence of alcohol or drugs.
    

• Where an individual was capable of giving valid consent but was suffering from a mental disorder within the Mental Health Act 1983 at the time of marriage/civil partnership.
• Where a person to the marriage/civil partnership had a sexually transmitted disease at the time of the marriage/civil partnership.
• Where a person to the marriage/civil partnership was pregnant by another person at the time of the marriage/civil partnership.
• Where an interim gender recognition certificate has been issued to either of the individuals to the marriage after the time of the marriage orcivil partnership.
• Where a person to the marriage had undergone gender recognition before the marriage and the other person was not aware until after the marriage.

If the marriage/civil partnership is deemed voidable the marriage/civil partnership is seen as valid up until the date of annulment and thereafter will the marriage or civil partnership have ended.

Judicial separation 

A married couple or civil partners are able to apply for judicial separation at any time. As such, it’s an option available to couples who have separated within their first year of marriage. This process is often referred to as “legal separation” and formalises the couple’s decision to live apart. It is important to note that this process does not dissolve the marriage or civil partnership. 

To obtain legal separation, the couple will need to make a judicial separation application to the court. This can be made either jointly or by one individual, and the original marriage or civil partnership certificate (or a certified copy) will need to be submitted. If the court is satisfied that all legal requirements have been met, it will make an order pronouncing judicial separation

Judicial separation allows you to legally separate from your husband, wife or civil partner without getting divorced. However, importantly, the marriage or civil partnership will not legally end under judicial separation. It is important to take advice from a private client lawyer as to whom would benefit in the event of your death, as judicial separation does not affect inheritance in the same way that a divorce would. 

The court is able to make financial orders in the same way that financial orders may be made upon divorce. However, the court is unable to make a pension sharing order or order a clean break as the couple remain married or in a civil partnership. This is a significant disadvantage of a judicial separation order and one reason why they remain rare. If either person wishes to remarry, they will need to obtain a divorce, and a separate application would need to be made.

Judicial separations are rare and are not in the best interests of most couples. However, there will be some couples where a judicial separation is appropriate, and there is an advantage that you don’t have to have been married for over 12 months in order to formally dissolve the relationship.

Separation agreement as an interim measure 

A couple who have been married for less than a year and have separated (or plan to separate) may wish to enter into a separation agreement.

A separation agreement is a legal agreement made between two individuals who are contemplating imminent separation following marriage or civil partnership. It can set out:

• Agreed financial arrangements during separation, often known as “interim arrangements”, and
• How the couple’s finances should be divided in the event of a future divorce.

A separation agreement does not end the marriage, but it provides a framework to manage the couple’s finances before issuing divorce proceedings. These agreements are particularly useful for individuals who cannot yet divorce due to the 12-month requirement.

However, while a separation agreement can provide security and structure, it is not legally binding in the sense that it is not possible to override the ability of the court to achieve a fair outcome upon divorce. Either party can still apply to the court for a financial order and ask for the agreement to be disregarded, this may happen if there has been a significant change in circumstances between the separation agreement and a subsequent divorce.

This can be frustrating for those who have spent time and money negotiating such an agreement in the hope it would be upheld. However, for some couples it is a worthwhile investment, and can provide helpful evidence as to what was agreed at the point of separation and why. It can also provide useful interim stability particularly where children are involved, or where the parties are cohabiting pending separated living.

Separation agreements are flexible and can cover issues beyond the court’s usual jurisdiction, allowing couples to agree their own terms. They can also be more cost-effective than issuing contested court proceedings later on.

However, because the individuals remain legally married or in a civil partnership, it will be necessary to obtain a financial order as part of any future divorce or dissolution proceedings. For that reason, some couples may choose to delay the resolution of financial matters until they are able to divorce (i.e. after 12 months of marriage). 

Waiting to divorce 

For some couples, it may be more cost-effective and less stressful to wait until they have been married for one year and one day and then proceed with a divorce.

If the marriage is not eligible to be void or voidable, a divorce will still be necessary to end the legal relationship even if a judicial separation or separation agreement is already in place. 

Divorce brings legal finality, ending financial claims each person has over the other. By contrast, separation alone does not achieve this. You are either legally married or in a civil partnership or you are not.

There is only one ground for divorce: the irretrievable breakdown of the marriage. The divorce process is now procedural and can be completed online — either jointly or by one individual. Once issued by the court:

• In sole applications, the other party will return an Acknowledgement of Service.
• In joint applications, no acknowledgement is required.

The divorce application then enters a 20-week waiting period, after which a Conditional Order can be applied for. A further six-week waiting period follows before the Final Order can be granted.

The more complicated element of divorce is often resolving financial matters. The court looks at three categories of assets: capital, pensions and income — and has broad discretion to make orders.

When considering a financial settlement, the court takes into account the Section 25 factors (taken from Section 25 of the Matrimonial Causes Act 1973), including:

• Each party’s income, earning capacity, property and financial resources (and any potential increases).
• Each party’s financial needs and obligations.
• The standard of living before the breakdown of the marriage.
• The age of each party and the duration of the marriage.
• Any physical or mental disability.
• Contributions made to the welfare of the family, including caring responsibilities.
• Any conduct that it would be inequitable to disregard.
• The value of any benefits lost due to the divorce or annulment.

While equality is the starting point for division of matrimonial assets, a departure from equality may be appropriate in some cases. The court’s focus will be to firstly meet the needs of any children and thereafter to meet the needs of the couple. For some couples it may be appropriate for there to be unequal sharing to meet those needs.

For non-matrimonial assets, those which are generally generated outside the relationship, they will usually be kept by the party whose property it is, unless it’s required to meet the needs of the couple. Non-matrimonial property often includes assets that one person owned before the marriage (otherwise called ‘pre-acquired’ assets) or those that may be received by one party during the marriage but kept separately to the marriage partnership, such as an inheritance.

One of the factors that the court will take into account is “the duration of the marriage”. The court will take into account any pre-marital or civil partnership period of cohabitation which lead into the marriage. Therefore, a couple may have a very short marriage, but the period of the relationship may be much longer and that will be an important factor when considering how assets should be divided in the event of a divorce. 

Talk to us

If you’ve recently separated but have been married for less than a year, understanding your legal options is essential. Whether you’re considering annulment, judicial separation or waiting to divorce, we’re here to help you navigate your next steps with clarity and confidence.

Our specialist family lawyers advise individuals across all types of separation and divorce proceedings. We’ll work with you to find the best legal route forward — and to protect your interests, finances and future.

Give us a call on 0333 004 4488, email us at family@brabners.com or complete our contact form below.