What Getting a Divorce Actually Entails
In our article ‘Thinking of Getting a Divorce? Consider These 5 Key Things First’ we looked at how incredibly hard it can be to know if it’s the ‘right’ time to end a marriage. The article offered some points for consideration which we hoped might be helpful in working through that decision.
If after consideration you do decide that it’s time for the marriage to come to an end, there are several options available; you and your partner may decide to separate informally (without going to court), with a separation agreement, or formally by getting a divorce.
In addition to all of the emotional issues that arise when a marriage is over, there are also a number of practical decisions that need to be taken, such as childcare (see Divorce and Children: Common Questions‘), money, housing, and other property and possessions. We’ve included a checklist later in this article to help make the practical side of separating as straightforward as possible, so you can concentrate on your emotional well-being.
First, we’re going to look at the different options available to you when separating.
Options Available When Ending a Marriage
If the separation is amicable you may be able to agree on decisions about children, housing and money together by an informal arrangement.
Worth noting – any informal arrangements made when you separate may affect future decisions, if you do ever go to court, so we recommend seeking legal advice to ensure you’re aware of the impact of any decisions you make may have.
If you want to separate but aren’t ready to divorce, or are unable to because you’ve been together for less than one year in England or Wales (or for less than two years in Northern Ireland), then you may want to have a separation agreement drawn up. This covers things such as financial arrangements, property and arrangements for the children.
If further down the line you decide to get a divorce, a separation agreement shows the date you both considered the relationship to have ended and that you both agreed to not living together (so your ex-partner can’t allege desertion).
Worth noting – While separation agreements aren’t legally enforceable it could be hard to argue in court that you shouldn’t have to adhere to it if you’ve been honest about finances and have taken legal advice about the agreement. Also any mention in a separation agreement that said you could never go to court for maintenance or child support would not be upheld in court.
As items agreed on in a separation agreement can go on to be used in a divorce, it’s advisable to consult a solicitor when drawing one up. We recommend making a list of the areas you’d like to cover before your first meeting as this will help keep your legal costs down. You may find our ‘Things to prepare before meeting with your divorce solicitor’ article helpful.
For some people divorce is not an option and a separation does not go far enough. An alternative is a Judicial Separation, where the parties remain married but all the normal marital obligations end.
A judicial separation has three main effects:-
- There is no obligation to live together
- As with a divorce, the court can divide the matrimonial property etc
- The judicial separation acts just like a divorce in terms of its effect on any will
A decree of judicial separation can be granted for any of the grounds which would justify a divorce (see below). However, unlike a divorce, you don’t have to prove the marriage has irretrievably broken down.
The number of people seeking judicial separation is much smaller than divorces. There appears to be three main reasons why a judicial separation is chosen over a divorce:
(1) You have religious reasons against divorce
(2) You’ve been married less than a year (there is bar on applying for divorce within that time)
(3) You want more time and space to work out whether to divorce
Worth noting – judicial separation does not end the marriage, so neither partner can remarry.
If you’ve been married for at least one year and decide you cannot stay married to each other, you can file for divorce. If the Respondent (the other party) does not formally contest the Petition, it’s called an undefended divorce, if they formally contest it then it’s called a defended divorce. Both are dealt with in the Family Court; however the latter can sometimes be more expensive, as for example you may need a barrister.
Grounds for Divorce
For the court to grant you a divorce you have to prove that the marriage has broken down permanently, in legal terms this is referred to as an irretrievable breakdown of the marriage. The person who starts the divorce proceedings, known as the Petitioner, must show that the marriage has irretrievably broken down by establishing one of the following:
2. Unreasonable behaviour
3. Desertion (at least two years ago)
4. Two years’ separation (if you both agree to the divorce)
5. Five years’ separation
We will look at each of these in more detail in a future article.
Who to Inform When You Separate
As we mentioned earlier, there are a number of practical steps you need to take when ending your marriage. Below is a list of organisations you’ll need to tell if you and your partner decide to separate:
- If you have a joint mortgage you need to inform your mortgage lender
- Your council tax office (you may be entitled to a single occupier discount)
- HM Revenue and Customs (especially if you receive tax credits)
- If you receive housing benefit or jobseekers allowance you need to inform them
- Your bank, building society or any other financial institution if you have a joint account
- (You may wish to freeze the account until financial agreements are in place)
- Hire purchase or credit companies, if in joint names
- Insurance companies (especially for joint policies)
- Any other accounts in joint names (water, gas, electricity and telephone companies)
- If you have school age children you should inform their school, both in terms of new contact details and so they can be sympathetic to any changes in your child’s behaviour
- If you’re moving and would like mail redirecting inform the post office.
- If you’re moving then you’ll also need to inform your doctor and dentist.
Also think about updating any policies or pensions where you have named your partner as beneficiary. This is also a good time to update or create a will.
How we can help
Since this article has been published we no longer offer Family Law services but we can help you with:
- Wills, Probate & Power of Attorney
- Personal Injury
- Court of Protection
- Medical Negligence