When a marriage breaks down irretrievably, couples are able to take steps in removing themselves from the situation and starting a fresh life independent from the other. This may be by way of separation, judicial separation or divorce.
Separation
A separation is when two married people have decided mutually to live separate lives. This arrangement can either be short-term while they sort out any differences or long-term. Couples who separate may live in the same household or separately altogether and will ordinarily choose to separate their assets, debt and household responsibilities. A separation agreement would be advisable to deal with matters such as mortgage payments, bills, how owned property may be partitioned and (for those with children), custody and visitation.
Couples who choose to separate do not need to enlist the services of a solicitor to do so and may legally live separate lives without the need for a Court approval. These couples however remain legally married and are not permitted to remarry or have an extra-marital relationship.
If you do not agree to any terms of the separation, such as the separation of finances and the family home, you will need to take a more formal approach by either having a Judicial Separation or Divorce.
Judicial Separation
A judicial separation is half-way between a separation and a divorce. It is a separation sanctioned by the court thus enabling the couple to approach the court to assist in the formal division of money and property, similar to orders made by the court in divorce proceedings.
It is important to remember that a judicial separation is a ratified version of the separation discussed above and couples remain formally married to each other until they divorce.
Although a judicial separation is not usually the most sensible course of action is you wish to formally end your marriage, some couples opt to choose this route due to a religious or moral objection to the idea of divorce or they wish to resolve financial issues but have not yet been married for over a year.
Although you do not have to ‘prove’ your marriage has broken down irretrievably in your judicial separation application, you will have to provide ‘facts’ which would justify a divorce application. These facts must fall under one of the five current grounds for divorce (below).
Divorce
Couples who have married in England and Wales or have a marriage registered and recognised by the legal systems of countries abroad are able to divorce one another.
A divorce is when a married couple decide to terminate or dissolve their marriage, thus no longer wishing to remain married to one another and ending their marital union permanently. Once a marriage has been dissolved, couples are able to remarry once again.
In an uncontested divorce, couples are able to separate their assets and debts themselves or with the help of their solicitors and will only seek the courts approval once an agreement has been drawn and agreed between the parties.
Although a divorce is not contested, couples may contest the finances in the marriage, in which case the court, on the application of either person, may conduct hearings and make orders as to the separation of assets.
There is currently no provision for no-fault divorce in the UK, although the Divorce, Dissolution and Separation Bill is currently doing its rounds in parliament. This is rumoured to come into law in England and Wales in Autumn 2021. Until such time, couples who wish to initiate a divorce must prove to the court that their marriage has broken down irretrievably by way of one of the following five grounds:
- your spouse has committed adultery and you find it intolerable to live with your spouse (adultery);
- your spouse has behaved in such a way that you cannot reasonably be expected to live with them (unreasonable behaviour);
- your spouse has deserted you for a continuous period of at least two years immediately preceding the presentation of the judicial separation petition (desertion);
- you have lived apart for a continuous period of at least two years immediately preceding the presentation of the judicial separation petition and your spouse consents to the judicial separation being granted (2 years separation by consent);
- you have lived apart for a continuous period of at least five years immediately preceding the presentation of the judicial separation petition (5 years separation).
Once the court is satisfied that any of the above five grounds have been proven, they will pronounce what is known as a decree nisi, after which you are free to initiate and settle financial disputes. Once a decree nisi has been pronounced, the court will accept an application for this to be made absolute after six weeks and one day. Once the decree is made absolute, you will be divorced and free to remarry.
Goldsmiths Solicitors have a dedicated Family Law team who specialise in divorce and marital finance disputes. Contact the Family Law Team at Goldsmiths Solicitors if you require help with your divorce or division of marital finances.