Guide to separation and divorce

Separation and divorce is one of the most stressful times a person can experience. There are a number of steps that you need to take on order for it to progress as smoothly as possible.  You and your partner may need to consider childcare arrangements, financial details, property and other possessions. In order to end your marriage you may choose to;

  • Separate informally without going to court.
  • Separate by using a separation agreement.
  • Formally divorce.

Separating informally

Even if you separate informally you will have to inform certain organisations of your new arrangements. These may include your benefits office, HM Revenue and Customs (tax credits) and your local council (housing benefits and council tax).

If you both agree you can make arrangements about children, money, property and possessions without having to go to court. However, there is a risk that any informal decisions you make now may impact your future, so it is wise to seek independent advice before progressing with an informal separation agreement.

Separating with a separation agreement

This is a written agreement between a couple who intend to stop living together. It details financial, property and childcare arrangements. It may include details such as financial maintenance for the other partner and also maintenance details regarding any children as well as how child custody arrangements would work.

The advantages of the written agreement are that the details are clear and both parties know where they stand. It is advisable to speak with a solicitor when drawing up formal separation agreements. However, it’s useful if you and your partner agree the broad details beforehand as it will reduce the legal costs not to mention the stress you will encounter.

Divorce

In order to apply for a divorce you must have been married for at least one year. The marriage must be recognised as valid by UK law and you must meet UK residency rules.

If both you and your partner agree to the divorce it is known as an ‘undefended divorce’; if you don’t agree it is known as a ‘defended divorce’.

Undefended divorce

If you have a simple situation (married, no children and easily separated financial situation) then you may not need to involve a solicitor at all. You can download the relevant forms from the Family Court and progress the divorce yourself. However, it may be useful to speak to a family solicitor beforehand as they will be able to advise you on whether there are sufficient grounds and which grounds may be appropriate and what evidence may be required.

It is advisable to speak to a solicitor if there is any domestic violence involved or if there are disputes regarding children or money.

Defended divorce

In a defended divorce you should always consult a solicitor. The case will be heard in the Family Court and you may also need to instruct a barrister. As lengthy court battles mean very high legal fees, it is advisable that you and your partner try to resolve as many disputes as possible beforehand.

What do you need to prove?

The court will grant a divorce if you or your partner can show that the marriage has broken down irrevocably and that it cannot be repaired. An irretrievable breakdown is a result of;

  • Adultery - The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it's satisfied that adultery has occurred and that the other partner could no longer live with the partner who has committed adultery. If you both agree to the divorce, the court will usually only need statements and details of the sexual relationship. If one of you doesn't agree to the divorce, proof will be necessary and this may be difficult and expensive to get.
  • Unreasonable behaviour - Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping. If one of you doesn't agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.
  • Desertion of at least two years - Desertion means that your partner left home against your wishes with no good reason. If your partner was away continuously for two out of the last two and a half years, you can apply for a divorce without the agreement of your partner.
  • You’ve lived apart for two years and both agree to the divorce - If you have lived apart (been separated) for two years continuously and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage.
  • You’ve lived apart for five years - If you have lived apart (been separated) for five years continuously, you can apply for a divorce without your partner's agreement. Your partner can object to the divorce on the grounds that it would cause unreasonable hardship. However, a court will usually agree to a divorce as long as you've been separated for five years.

Applying for a divorce

The partner who is applying for the divorce is called the petitioner. The other partner is the respondent.

If you are happy that you know what you are doing and no not need professional advice, you can download the appropriate forms from the Ministry of Justice website. The court office will tell you which forms you need, but court staff are not allowed to give legal advice to either partner or help you fill in the forms.

What will the court do?

If you both agree to the divorce

If you both agree to the divorce, the court will look at the petition and grant an order called a decree nisi. No court hearing is needed. Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a final order called a decree absolute. This confirms the divorce. After a decree absolute has been made, either partner can marry again or enter into a civil partnership.

If one of you doesn't agree to the divorce

If you start divorce proceedings and your partner doesn't agree, they will have to fill in court papers called an Answer. They have to say why they don't agree that the marriage has broken down. There might be a court hearing for a judge to decide whether the marriage has broken down. These hearings are very rare, as in most cases a defended divorce will be resolved before a court hearing.

If the court agrees to grant the divorce, they will grant a decree nisi. Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a decree absolute. This confirms the divorce. After a decree absolute has been made, either partner can marry again or enter into a civil partnership.

For help and advice regarding separation and divorce contact our family team on 01787 277375 or use the online form.