Divorce & Separation
Marriage has ended. What’s next?
The end of a marriage can be life changing. You might be unsure about applying for divorce. Emotionally it might be too soon to contemplate this. For couples who are not ready to divorce but want to commit to a financial settlement, there is the option of a Separation Agreement. This is essentially a legal contract entered into between you.
The document can make provision for the sharing of capital, assets and property and to pay/receive child and/or spousal maintenance. The Agreement can provide for a divorce in the future and within that divorce process, the court can be invited to approve the settlement agreement. A Separation Agreement cannot however share a pension. Before a pension company will implement an agreement to share a pension, you must have divorced and there must be a pension sharing order within divorce proceedings.
Some couples may want to avoid ending their marriage, for example, for religious reasons, but want to formalise their separation. This can be achieved by applying for a Judicial Separation. The process is similar to a divorce but the final decree is a judicial separation decree and not decree absolute which dissolves the marriage. If you cannot agree a financial settlement, the court has power to make financial orders in the same way as within divorce proceedings with the exception of splitting pensions which can only be done within divorce proceedings.
Each option has different pros and cons with different legal implications. Seeking advice at an early stage can help you to find out what is the best option for you.
As specialist divorce solicitors we can help you to decide the best way to proceed to suit your particular needs and circumstances.
Divorce – What do I need to prove?
In order to obtain a divorce you will need to prove that your marriage has broken down irretrievably.
Divorce proceedings may only be started after one year from the date of marriage.
To obtain a divorce in the English Courts, it is not necessary for both you and your spouse to live in England and Wales – only one of you must do so.
It will usually take around six to eight months for a divorce to be finalised. Unless a divorce is defended or there is an issue over who pays the costs of the divorce an attendance at court is not usually necessary and the process is dealt with by the Court as a paper exercise.
What are the grounds for divorce?
There is only one ground for divorce which is the irretrievable breakdown of the marriage. It has to be based on one of five facts. Three of these facts depend upon you and your spouse having been separated for two years or more, namely.
1. That you and your spouse have lived apart for a continuous period of at least two years immediately before the start of the divorce and your spouse consents to a divorce. Please note the divorce can only proceed if your spouse consents and records this in the divorce paperwork.
2. That you and your spouse have lived apart for a continuous period of at least five years immediately before the start of the divorce (your spouse’s consent will not be necessary).
3. That your spouse deserted you for a continuous period of at least two years immediately before the start of the divorce.
The other two facts not referable to separation are as follows:-
4. That your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. To be unreasonable, behaviour does not have to be extreme such as domestic violence, drug or alcohol abuse. The reasons for marriage breakdown are personal to that marriage. Behaviour could consist of milder allegations such as your spouse being unsupportive, critical or spending insufficient time at home. At least one example must have taken place in the past 6 months.
5. That your spouse has had sexual intercourse with a person of the opposite sex. You cannot rely on adultery if you are still living with your spouse six months after you first found out about the adultery. It is not necessary to name the person with whom your spouse has committed adultery and naming a co-respondent is actively discouraged.
What is the procedure for divorce?
Once we have obtained your marriage certificate or certified copy, we can draft your divorce petition now called an application. After you have approved the documentation, we will send this to your spouse for review if you are happy for us to do so. This is an opportunity for the paper work to be agreed before it is sent into court which reduces the risk of upset or worse, defended divorce proceedings. It shows that you want to resolve matters amicably. The procedure at Court is as follows:
- The divorce documentation will be sent to the Court with a fee (currently £550).
- The court will send the document to your spouse with an Acknowledgement of Service Form.
- Your spouse has eight days to complete & return the form to the Court stating whether they agree to the divorce or intend to defend it.
- If your spouse fails to return the form to the Court within 21 days, we may have to personally serve them with the divorce documents.
- Once we have received the Acknowledgement of Service form from the Court or proved that your spouse has received the divorce documents, we can apply for the Decree Nisi. We will prepare a statement for you to sign to send to the court with the Decree Nisi application.
- Provided the court is satisfied with the divorce papers they will issue a Certificate of Entitlement to a Decree Nisi. This will confirm the date of the pronouncement of Decree Nisi and will confirm the court’s decision on the making of any cost orders. If you disagree with the costs order that the court has made and you want to make representations we will need to let the court and the other side know in advance of the Decree Nisi hearing.
- Decree Nisi will be pronounced by the Judge in open court. Your attendance at the hearing will not be necessary unless you want the Judge to listen to your objections about any costs orders before the Judge makes a decision. If you are to attend, the Court must be given notice of this.
- Six weeks and one day following the date of the Decree Nisi, you may apply for the Decree Absolute. The Decree Absolute finally dissolves your marriage. Again, you will not be required to attend Court for the Decree Absolute. If a financial settlement is unresolved at the stage you may be advised to delay applying to dissolve the marriage until the finances are agreed or ordered.
- The dissolution of a marriage can impact on financial settlement in the event that a party to the marriage dies after decree absolute but before a financial settlement is ordered.
What about a financial settlement?
Many people expect the divorce itself to end all financial ties with their ex-spouse. This is not the case. You each have continuing claims which only the courts can deal with. It is highly advisable to seek legal advice on what you should look out for and what you can do to protect yourself in dealing with financial and property related issues.
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