Exceptional Circumstances, Divorce And The ‘Annulment Trap’ 

Published on 22 May, 2023 | Hayley Jetson

For those going through the process, divorce can seem like a deeply personal and solitary experience.

However, according to the Office for National Statistics (ONS), 113,505 opposite-sex and same-sex couples ended their marriages this way in 2021 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

I suspect that few if any of those individuals exchanged vows with the intention of divorcing soon afterwards.

Circumstances, though, can and indeed do change very quickly, causing couples to decide whether or not they can or should stay together.

One such situation is the diagnosis of a terminal illness. Being faced with one’s immediate mortality can create exceptional stresses which act as a wedge between spouses.

Yet if such eventualities occur within 12 months of a couple marrying, the impact of the stark medical conclusion can be compounded by legislative fine detail.

That is because, as things stand, people wanting to end a marriage which has lasted less than a year can only do so if they meet very narrow criteria for annulment, like non-consummation or that theirs was a forced marriage (https://www.gov.uk/how-to-annul-marriage).

If the marriage in question has already been consummated by the time of a terminal diagnosis, the couple must wait at least a year to apply for a divorce.

To give you some idea as to how often this question arises, data published recently by the Ministry of Justice (MoJ) has revealed that some 357 annulment applications were made during last year but that fewer than half (170) resulted in final orders (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2022/family-court-statistics-quarterly-october-to-december-2022#divorce).

Furthermore, 1,371 opposite-sex and same-sex couples divorced after a single year of marriage in 2021. Without the kind of detail which, sadly, is simply not available, it’s impossible to know why those relationships broke down so relatively quickly.

It is quite plausible, however, to imagine that some at least might have found themselves in a predicament whereby they needed to begin divorce proceedings within 12 months but they were unable to satisfy the legal criteria.

Recognition that the conundrum not only exists but is unfair is not necessarily new.

People used to be able to ask a court for permission to end their marriages within a year but that facility was withdrawn as a result of an amendment to the Matrimonial Causes Act.

During a debate in the House of the Lords in November 1983 about the changes, the former Master of the Rolls, Lord Denning, argued that petitions should not be prevented by a time limit (https://hansard.parliament.uk/Lords/1983-11-21/debates/b5a2b7f7-2488-4c87-bcce-dda66fd57dde/MatrimonialAndFamilyProceedingsBillHl?highlight=matrimonial%20causes%20act#contribution-e2b03947-a78d-4169-a8ec-43154bfca2e7)

“When the marriage has irretrievably broken down,” he said, “whether it is in six months, or nine months or two years, let the petition be then filed.

“Limitation does not bring the parties together again…It does not deter the breakdown; it just defers the formal finding of it.”

An opportunity to correct that position while making the most substantial reform of divorce law in half a century – the Divorce Dissolution and Separation Act, which came into force in April last year (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted) – was missed.

It is also worth pointing out that having to wait 12 months to apply for a divorce does not guarantee a swift resolution.

The latest figures show that, on average, divorces take 67 weeks from the lodging of a petition through to the issuing of a final order.

As myself and my colleague Alison Fernandes have been explaining in The Times (https://www.thetimes.co.uk/article/7102f2d0-f4c6-11ed-97af-27f55025e763?shareToken=d3f77bfaa82d8523ae3b9dfba97097a3), there are significant practical consequences to being unable to exit a failed or failing marriage quickly.

If, for instance, individuals with a terminal illness die before ending their marriage and revising their will, their surviving spouse will be in a favourable position to inherit their estate despite any wishes to the contrary on the part of the deceased.

The only alternative to a lengthy wait is the expense and uncertainty of court proceedings, something which may in itself not be resolved before someone so affected passes away.

Even if we overlook the often considerable cost of taking a case to court, the emotional strain involved is not something which a terminally ill person and their family really need when trying to make the most of whatever remaining time they may have together.

Having dealt with this difficult issue for a client recently, I expect most people would agree that it is unfair that an application for divorce cannot be brought more quickly.

Even so, it remains to be seen whether politicians will offer a way out of this annulment trap any time soon.