Family Lawyer Guide to Separation and Divorce
20 February 2019
By Family Lawyer, Simon Hawkins
When a relationship ends, depending on the legal status of the relationship, the couple may have a couple of options. A married couple may wish to get divorced, apply for a judicial separation or apply for a Separation Agreement. Family Law Solicitor, Simon Hawkins, explains how each process works.
For a couple in a civil partnership, they will have the same options, except that instead of a divorce it would be a civil partnership dissolution. For more information on how this process works, see civil partnership dissolution explained.
Guide to Divorce
In divorce proceedings the person applying for the divorce is known as the 'petitioner' and the person responding to the divorce proceedings is the 'respondent.'
In order to obtain a divorce the couple will need to have been married for at least 1 year. The petitioner will also need to prove that the marriage has irretrievably broken down. This can be done by relying on one of 5 facts (or reasons) for divorce.
The facts for divorce are:
- the respondent's adultery
- the respondent's unreasonable behaviour
- the respondent has deserted the petitioner for at least 2 years
- the couple have been separated for at least 2 years and the respondent agrees to divorce
- the couple have been separated for at least 5 years
The petitioner will first need to complete the divorce petition and send this to the Court. The Court will then serve this to the respondent. The respondent will have to complete a form known as the Acknowledgment of Service which will confirm if they intend to defend the divorce or consent to it.
If the respondent agrees to the divorce, the petitioner can then apply for the Decree Nisi which confirms that a judge has seen the documents and agrees that the couple can divorce. After the receiving the Decree Nisi, the petitioner must then wait 6 weeks and 1 day before applying for the Decree Absolute which confirms the marriage is legally over and that both people are free to marry again.
Guide to Judicial Separation
An alternative to divorce is judicial separation (or separation order for civil partnerships). In order to obtain a judicial separation you will again need rely on one of the 5 facts of divorce, as mentioned above. The procedure for applying for judicial separation is the same as divorce (although there is only one Court stage). However there are some important practical differences between divorce and judicial separation.
Judicial separation can be sought at any time after the marriage, so this could assist a couple who cannot divorce because they are still in the 1st year of their marriage.
With judicial separation there is no need to show the marriage has irretrievably broken down.
Once the decree of judicial separation has been obtained the parties will remain married, but will no longer have a duty to live together. They will however have access to similar financial procedures to sever their financial ties as a divorcing couple would – see below.
Judicial separation does not affect any existing Will. For more information on how divorce affects existing Wills, see What Happens to My Will after Divorce?
Judicial separation may also be of help to couples who, for religious or moral reasons, do not want to divorce.
Severing Financial Ties
It is important to note that with both divorce and judicial separation, the financial ties between the couple are not severed. This means that if the couple do not take steps to sever these ties, then one of them could be entitled to make a financial claim against the other, even years down the line.
In order to end their financial commitment to one another the couple will need to put a Clean Break Order in place. This involves either making a further application to the Court, or coming to a formal agreement outside of Court, which will then require the Court's approval to have effect.
A final option couples may wish to consider if they do not want to begin Court proceedings is a Separation Agreement. This may be appropriate for any couple who is separating, whether they are married, in a civil partnership or cohabiting, where there are financial arrangements to be made or assets to be distributed.
It is important to note that a Separation Agreement won't legally end a marriage or civil partnership. It's also important to note that although the couple has entered into an agreement, if they later begin divorce or judicial separation proceedings, their Separation Agreement would not be binding in the Court. However, the Court may consider the Separation Agreement when deciding how to distribute the marital assets on a fair and reasonable basis.
Divorce or judicial separation and the subsequent financial settlement can be both complex and emotionally challenging. However at Co-op Legal Services our Family Law and Divorce Solicitors can support and guide you through the process. We offer a range of fixed fee services for divorce, civil partnership dissolution and separation.