Bars to divorce: can the court refuse to grant a divorce?

When you submit your divorce petition to the court, 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: irretrievable breakdown of the marriage. There are five facts that you can use to prove this breakdown – for details, see my last blog. To be granted a divorce, you must show that the marriage has broken down, by proving at least one of those five facts. So why might the court refuse your divorce petition?

If there is irretrievable breakdown but none of the five facts can be proven, then there’s little chance of you getting a divorce.

On the other hand, if at least one of the facts can be proven, but the marriage hasn’t broken down irretrievably (for example, if there has been adultery but you and your spouse have remained together for more than six months after the adultery was discovered), again, no divorce can be granted.

These are the two main reasons why a divorce petition might be unsuccessful, but there are certain 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 petition for a divorce, even if there is irretrievable breakdown and you can prove at least one of the five facts. You have to wait until 12 months from the date of your marriage, or apply for an annulment or judicial separation where appropriate.

In the case of five years’ separation, the court has the power to refuse a divorce if the respondent would suffer such severe financial or other hardship that it would be wrong in the circumstances to grant a divorce. It’s rare that this happens, as the court has extensive powers to make financial orders, so enabling the divorce to proceed. Where there are no funds to award financial payments (if you are both facing hardship) it is not wrong to grant a divorce as there is simply nothing that can be done to avoid that hardship. Also, in the case of two and five years’ separation, the respondent can raise a bar to divorce in which the court must decide whether the petitioner’s financial arrangements are reasonable and fair (or the best that can be made in the circumstances).

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.

And finally, in exceptional circumstances a court cannot grant a decree absolute where it requires more time to consider issuing orders in respect of your children.

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