Divorce and separation is one of the most difficult and potentially hostile areas of law. In the majority of cases, one if not both of parties are going to feel angry and betrayed by the other. It is the job of a solicitor to negotiate on the issues, advise and if necessary obtain the best result for the client at court.
As part of this negotiation process, both parties are going to have to divulge full disclosure on their financial circumstances, especially if it has been a long relationship. Contrary to a belief held by many, in law whether a party is “at fault” does not significantly alter the outcome of any financial settlement but can impact upon contact arrangements with children.
Many couples will have a period of separation before launching divorce proceedings. A separation does not require any legal proceedings and if the parties are enjoying this period of separation this may enable the divorce proceedings to proceed more smoothly. The parties may gain a greater idea of what they would like out of a divorce settlement from the separation period and it may allow arguments over contact of children to be resolved more smoothly.
Some couples may wish to remain separated rather than divorced as they will continue to enjoy the benefits of a married couple, however, they would not be allowed to re-marry whilst remaining separated.
Some legal points to consider if you wish to separate formally rather than divorce and which may be pertinent to be included in a legal agreement are finances, contact of children for both parties, joint accounts, rights over property and also reviewing one’s will.
A couple may wish to remain living in the same family home once separated, however, if they decide to live apart this may involve the parties accepting a lower standard of living as the cost of running two separate homes can be burdensome.
The parties may wish to draw up a deed of separation and in principle this can be recognised by the courts using a judicial separation. However, the procedure to this is very similar to a divorce and is mainly used when a divorce is objected to by one of the parties, for example, on religious grounds.
In order to get a divorce, the parties must have been married for at least a year and for that marriage to be described as having broken down ‘irretrievably’. The divorce proceedings are started when one of the parties files a petition at court. There are five grounds in which a party can petition for a divorce, these are:
1) One of the parties has committed adultery;
2) The unreasonable behaviour of one of the parties makes it intolerable for them to continue living together;
3) Desertion by one of the parties, must be living apart for a period of 2 years;
4) Parties have been separated for a period of 2 years and both agree to a divorce, this does not have to be a physical separation. The parties are only required to show that they live independent lives of one another.
5) The parties have been separated for at least 5 years.
If the main cause of a divorce is a specific incident such as one of the parties being violent to the other or adultery. The parties cannot continue to live with each other for the next 6 months. Otherwise this will contradict the point in relation to the marriage having broken down irretrievably.
There is no advantage throughout the divorce proceedings to party who petitioned for the divorce. It is advisable for the parties to agree as much as they can before they begin legal proceedings as the more in conflict between the parties the most cost there will be in legal fees.
A divorce proceeding can generally be broken down into three separate segments, the divorce itself, negotiations over the financial matters and the making of arrangements for the children. All three segments of the proceedings will be dealt with independently of each other. The family proceedings can be dealt with independently of solicitors by the parties themselves, however this is only possible in a minority of cases. If all is agreed between the parties, a divorce can be finalised within 6 months.