Pothecary Witham Weld Solicitors

The breakdown of a marriage or civil partnership is rarely easy. From looking after your children to the division of assets, separation can be a traumatic time. We can provide you with appropriate legal advice, whilst being sensitive to the emotional issues you may be facing.

On the breakdown of a relationship, you have the following options:-

1. Wait

You could wait to see if there may be reconciliation.

2. Separation Agreement

Some couples prefer to reach an agreement about financial matters without involving the Court. This can be achieved by signing a written agreement which incorporates the terms they have reached. Commonly, such agreements confirm that the parties are to live apart and set out how maintenance and/or property are to be dealt with and arrangements for a divorce.

Separation Agreements, however, are not binding on the Court. They are not enforceable. However, in the event that one of the couple reneges on an Agreement, the Court will look at the terms of the Agreement as evidence of the couple's intentions. Even when both partners have reached an amicable agreement, we always recommend that at the appropriate time, a Consent Order is obtained from the Court. This is a relatively inexpensive procedure, but it provides certainty.

3. Divorce / Disolution of Civil Partnership

You may decide to initiate divorce proceedings. There is only one ground for divorce which is irretrievable breakdown of marriage.

There are five facts to support this ground. The person asking for a divorce (Petitioner) must satisfy the Court that either:-

1. The other person (Respondent) has committed adultery and that the Petitioner finds it intolerable to live with him or her; or
2. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him or her; or
3. The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition; or
4. The marriage partners have lived apart for a continuous period of at least two years immediately preceding the filing of the Petition and the Respondent consents to a Decree being granted; or
5. The marriage partners have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.

The first stage of a divorce is marked by the Decree Nisi. This is the Court Order that recognises that the marriage has irretrievably broken down.

Six weeks and one day after the Decree Nisi date, you will be entitled to apply for the Decree Absolute. This is the Order that dissolves your marriage or civil partnership.

Usually we advise clients not to apply for the Decree Absolute until financial matters are settled.

An undefended divorce will take a minimum of 4 months to complete. Determining the financial issues usually takes longer.

4. Judicial Separation

Judicial Separation is extremely rare. This remedy tends to be pursued mainly for religious reasons, if the parties have been married for less than one year, or to protect an interest in a pension. The effect is that a married couple will remain married, but they will be entitled to live apart and the separation will be formally recognised by the Court.

The essential difference between a divorce and a Judicial Separation is that the Court pronounces a Decree of Judicial Separation rather than a Decree Absolute.

The advantage of seeking a Judicial Separation, over an informal separation, is that it enables the Court to make Orders in respect of property and capital, which it cannot do if a divorce or Judicial Separation is not being sought.

If you would like our expert advice about any these issues please contact us.