Key Marriage and Divorce Terms Explained

Portrait of Henry VIII (Photo credit: Wikipedia)

For couples entering into marriage as well those coming out the other side, emotions run high for contrasting reasons, however it is always worth getting to grips with a few key legal concepts to make the transitions smoother.

Mediated & Collaborative Divorces
A particularly expanding side of divorce law and procedure is the area of mediated and collaborative divorces. These processes aim to ensure that conflict and hostility are removed from divorce (for the sake of the individuals involved and their families) and that the parties concerned work together as much as possible to achieve an outcome that suits each as far as possible. The techniques both use open channels of communication between the parties to minimise misunderstandings and promote co-operation.

Collaborative divorce processes involve the parties sitting around a table together (figuratively or literally) with representative lawyers, neutral financial experts and all relevant information in an attempt to find agreement without the need for a court hearing. If a resolution is not found and the case goes to court, neither can the discussions that occur during the process be used in court or the lawyers involved go on to represent either of the parties.

Mediated divorce is similar to collaborative divorce but occurs during a court hearing. It employs an impartial lawyer as a facilitator who acts as a go-between throughout the hearing to ensure that there is an open channel of communication and that negotiations have structure and feasible goals.

Pre-Nuptial Agreement (Prenup)
Otherwise known as an antenuptial or premarital agreement, a prenup is an increasingly popular agreement sought by couples entering into marriage to ensure a pre-agreed and smooth division of their assets in case of divorce. These ‘contracts’ are used traditionally in Jewish and Islamic law and are legally recognised in some continental European countries where they can be binding regardless of events leading to the divorce. In the US, however, they are not legally binding although they can be taken into account as an indication of each party’s intent as they entered into the marriage; whilst in the UK, prenups have only very recently been acknowledged as having a (limited) potential to influence divorce outcomes in certain circumstances.

Annulment
In contrast to a divorce, which is the dissolution of a valid marriage, an annulment is the ruling that a marriage is null and void. In other words the marriage was never legally valid in the first place (void ad initio) and so can be considered to have never existed as a valid legal state at all.

Annulments can be sought and granted if either party in a marriage was not in possession of all relevant information and free will when consenting to the marriage, or was not legally entitled to marry. Reasons can include duress, insanity or deception at the point of consent, as well as polygamy (the taking of multiple spouses) by either party or the individuals being closely related. Despite the fact that annulment renders a marriage invalid for its duration, children born in a marriage which is subsequently annulled can still be deemed as legitimate, depending on the jurisdiction involved (as is the case for the example in US).

Historically, annulments were commonplace under the Catholic Church where a valid marriage is a contract for life and so the only way for a marriage to be dissolved is to determine that it was never valid in the first place. This leads to the interesting contradiction that Henry VIII didn’t technically have six wives as is common wisdom. As three marriages were annulled he can be said, in legal sense, to have only had three.

© Stuart Mitchell 2012
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