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Divorce and Separation

Divorce and Separation


Many people we speak to have not yet firmly made a decision to divorce. In other cases they are unmarried but have property to divide and children to consider. During our discussions we will talk about your options so you can make an informed decision about what is best for you. Occasionally a meeting with a counsellor, from an organisation like RELATE, can present a host of options before divorce becomes the only choice.

It is possible for couples to be informally separated either living in separate properties or separately in the same house.

An informal separation does not usually involve Court proceedings, although we can help you to make the most comfortable arrangements in respect of your children, money and property if you do consider this option. In many cases this kind of informal arrangement does not require any involvement from the Courts and we simply provide you with clear options and suggestions.

As informal as the separation is, an agreement should be formally drawn up in a legally constructed document called a “Separation Deed”, or you may hear it called a “ Separation Agreement”, which we will negotiate and draw up.

In the event that the separation becomes permanent and you or your partner decide to commence formal proceedings through the Court either by judicial separation or divorce, then it is essential that any separation deed / agreement is brought to your advisors attention. This is so that the agreement can be incorporated into a Court Order. Please be aware however that the agreement will be looked at at the time of the divorce and will only be confirmed if its terms remain fair and reasonable.

A Separation Deed/Agreement cannot be finalised without the express co-operation and agreement of both parties. If agreement cannot be achieved then you may need to seek a judicial separation or a divorce, as a Court application may be required in order to settle the matter.

To be valid and to have force, each party to a Separation Agreement should have received independent legal advice.

Judicial Separation

Judicial separation is relatively rare, being somewhere in between an informal separation and a divorce. It is an option for couples who have been married for less than a year, or those who do not want to file for a divorce but cannot reach an informal agreement on financial matters and need the Court’s assistance.

It can also be used by people who wish to separate but have strong religious beliefs which would prevent them from taking divorce proceedings. Older people who stand to lose financial benefits like a widow’s or widower’s pension if they file for divorce may also seek a judicial separation which can sometimes better protect their financial interests.

Whereas a divorce asks you to declare that your marriage has “irretrievably broken down”, a judicial separation does not require that. You must however give a reason to the Court for the separation.

These reasons or facts are laid down by the law and have to fall into one of five categories:

  • Adultery
  • Unreasonable behaviour
  • Desertion for two years
  • Two years separation with the consent of both parties
  • Five years separation not needing the other party’s consent

At the end of a judicial separation, you will receive a Decree (Order) of Judicial Separation from the Court. This formally recognises your separation but technically and legally you remain married. A judicial separation will not allow you to remarry. For that you will need to go through a divorce in order to get a Decree Absolute which ends the marriage entirely.

Divorce

There is only one ground for divorce: You or your spouse must believe that your marriage has irretrievably broken down.

Divorce does involve a Court process. At the end of the process you will receive a Decree Absolute which confirms the end of your marriage. This document should be kept in a safe place as if you wish to remarry in the future you will require this document as proof of your divorce.

There are five ways of proving that a marriage has irretrievably broken down:

  • The other party’s adultery
  • The other party’s behaviour
  • Desertion for two years
  • Two years separation with the consent of both parties
  • Five years separation not needing the other party’s consent.

One year must have elapsed from the date of the marriage before a divorce petition can be presented to the court.

We are able to advise you on the most appropriate way to approach your divorce depending on your particular circumstances and how to commence proceedings. We will prepare the necessary paperwork and guide you through the Court process, supporting you and ensuring that everything is completely clear throughout.

It takes about four to six months to obtain a Decree Absolute. This is an estimate and much will depend upon your circumstances and the Court in which you start the divorce proceedings together with the co-operation or otherwise of the other party.

It is always advisable to finalise arrangements for your children, money and property at the same time as going through your divorce process. The divorce process itself does not deal with these issues which must be concluded separately.


Howe & Spender Solicitors is regulated by the Solicitors Regulation Authority, No.00173958