There are two main ways of formalising a separation and the division of a married couple’s assets – by way of Divorce or by way of Separation Agreement (also known as a Deed of Separation).
There is also the option of petitioning for a Judicial Separation. To discuss in detail the pros and cons of each of these options, please contact a member of our specialist Family team.
What is a divorce?
Getting a divorce ends the legal contract of marriage. It is a piece of paper confirming that you are no longer married. It involves completion of paperwork and, unless contested, it is a purely administrative process.
You may choose to deal with this aspect – the main suit – yourself and courts have made the process more user-friendly. However, you should bear in mind that the forms if not completed correctly can be rejected by the court causing delay, additional stress and higher costs.
If you are not confident dealing with paperwork or do not have the time to do so, you may prefer to instruct one of our specialist family lawyers all of whom have current experience and knowledge of the relevant law and procedural requirements to guide you through the process.
Grounds for divorce
In order to get a Divorce, you or your spouse must show that your marriage has broken down irretrievably and to do this you must show that one of five facts exists. These are as follows:
1. That your spouse has committed adultery and you find it intolerable to live with him/her;
2. That your spouse has behaved so unreasonably that you cannot reasonably be expected to live with him/her;
3. That your spouse has deserted you for a continuous period of at least two years;
4. That you and your spouse have been living separately and apart for at least two years and the other consents to a divorce;
5. That the two of you have been living separately and apart for at least five years.
What does “living separately” mean?
Separation in this context means living completely separate lives. It is possible for a married couple to be separated whilst living under the same roof but they must be living independently from one another, so they must, for example, be sleeping separately, eating separately and socialising separately. Separation has a mental element as well as a physical element; you must have ceased to recognise the marriage as subsisting (i.e. considered it to be a marriage in name only) since the date of separation.
The first step is for the Petitioner to file a Divorce Petition at court with a cheque for the court fee of £550.
The court will then send the Petition to the Respondent with an acknowledgement form for the Respondent to complete on which the Respondent is required to state whether or not he/she intends to defend the divorce. The Respondent must return this form to the court and the court will in turn send a copy to the Petitioner so that the Petitioner can proceed with the next stage of the Divorce, namely an application for the Decree Nisi.
Once the Decree Nisi has been pronounced, the Petitioner may apply for the Decree Absolute 6 weeks and a day from the date of the Nisi. If the Petitioner does not do so, the Respondent may make an application for the Decree Absolute three months after that.
If all paperwork is dealt with in a timely manner, it will take around four months to get divorced.
However, either party to a divorce may be seriously prejudiced if Decree Absolute is granted before finances have been settled and you should therefore get legal advice on this point at an early stage – and before applying for the Decree Nisi if you are a Petitioner.
Divorce – to settle finances
A Divorce does not bring an automatic end to any financial obligations you and your spouse might have to one another. Unless the split of your assets is set out in a court Order you will not have a clean break from your spouse, which may mean that he or she can claim further money or property from you in the future.
If you and your spouse can agree on how to divide your finances, we can convert your agreement into a legally binding document known as a Consent Order application which you will both sign. This is then filed at court for the approval of a Judge after the Decree Nisi of divorce.
However, you may prefer us to assist you through the process of separating your matrimonial finances at an earlier stage. This is particularly advisable if you have a lot of assets at stake, if you feel you are in a vulnerable position compared to your spouse, if many of your assets are held in your spouse’s name only, if you are unsure what is fair financially or if one or both of you have significant pension provision. It is important to get the settlement right as your Order, if it provides for a clean break, will not allow you a second bite at the cherry.
For more information about Divorce and Finances, please click here.
If you wish to enter into a Separation Agreement, you will need your spouse’s full cooperation as the voluntary exchange of full and frank disclosure of your respective financial circumstances is essential to ensure that a Separation Agreement is as watertight as possible.
A Separation Agreement will usually set out how a couple intend to divide their finances and arrangements for their subsequent divorce (who is to be the petitioner, how costs are to be apportioned etc). Clients often choose to proceed with a Separation Agreement if they have been separated for less than two years and wish to avoid making allegations against one another – you have to be separated for at least two years in this country before you can divorce without having to make allegations against your spouse.
You should note that a Separation Agreement does not have the same force as a court order within divorce proceedings and is capable of being overturned in certain circumstances.
If you would like advice in relation to a Separation Agreement, please contact one of the specialists in our Family team.