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Victoria Batstone
Victoria Batstone
11 Jul 2018

How to file for gay divorce

LGBT Legal Advice

“How to file for gay divorce” has become a common enquiry over recent years, you must first satisfy the legal requirements. The legal requirements for dissolving the marriage are more or less the same as for opposite sex divorce. The person starting the gay divorce process is known as the “Petitioner” and the other spouse is known as the “Respondent”.

The first requirement is that you must have been married to your spouse for at least one year.

Gay divorce laws UK state that the only ground for gay divorce is that the marriage has irretrievably broken down. You must be able to prove the ground for gay divorce on one of five grounds:

  1. Unreasonable behaviour – this could include, for example, your spouse having sexual relations with someone else or domestic violence;
  2. Adultery – it is important to note that you can only rely on this ground if your spouse has had sexual intercourse with a member of the opposite sex. You cannot rely on adultery if your spouse has committed adultery with a person of the same sex;
  3. Two years separation, with your spouse’s consent;
  4. Five years’ separation;
  5. Desertion for a period of not less than four years.

You must also be able to satisfy the Court that the Courts in England and Wales have the power to deal with your gay divorce. This is known as the jurisdictional requirements. You must satisfy at least one of the criteria below:

  • i. Both be habitually in England and Wales;
  • ii. You were both last habitually resident in England and Wales and one of you still resides in England and Wales;
  • iii. The respondent is habitually resident in England and Wales and has lived in England and Wales for at least one year immediately prior to the petition being filed;
  • iv. The Petitioner is domiciled and habitually resident in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is filed;
  • v. Both of are domiciled in England and Wales.

If you do not meet the jurisdictional requirements, the court may still have jurisdiction if you or your spouse are domiciled in England and Wales on the date the petition is filed at Court or you married under the Law of England and Wales and it is in the interests of justice to assume jurisdiction.

It can sometimes be complicated to establish where you are habitually resident and domiciled. If you are unsure of your legal position, if it important that you seek legal advice.

To start the process you must file a divorce petition at Court. If the Court decides that you are entitled to divorce, the Court will grant you a Conditional Order. You must then apply for the Conditional Order to be made into a Final Order. It is the Final Order that formally dissolves your gay marriage.

If you are considering a gay divorce it is important to seek LGBT legal advice from an expert in this field. Our experience gay divorce lawyers are on hand to help you through the divorce process. Please call our department on 01202 636223 to book an appointment or send us an email enquiry.

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Victoria Batstone
Victoria Batstone