Divorce & Separation
Divorce & Separation Explained
When two people are married, their financial and other affairs are legally bound together. This means it’s necessary for a legal process (divorce) to dissolve the relationship should it come to an end. Divorce doesn’t necessarily involve the court system, but if the divorcing parties can’t agree on issues such as financial or child custody arrangements, they have several different options to try resolving the dispute.
Two married people can separate, meaning they no longer live together, but for as long as they remain married their affairs will be legally tied together. While there is no legal requirement to formalise a separation, if a couple wishes to separate it may sometimes be useful to draw up a Deed of Separation. This document includes details about child custody and financial agreements, and whether the couple has plans to divorce. Note, however, that a Deed of Separation may later be used as evidence in a divorce hearing, so both parties should take care that everyone’s best interests are represented.
Judicial separation, or legal separation, is a more formalised separation option. It can be used by couples who have religious reasons to avoid divorce, or who want to separate but aren’t yet sure they want to divorce.
To get divorced, a couple must have a justifiable reason for believing the marriage has broken down irretrievably. Examples of justifiable reasons include:
- Adultery, providing the married couple did not continue to live together afterwards;
- Desertion, where one spouse permanently leaves the home without a justifiable reason or without both parties agreeing to the separation;
- Unreasonable behaviour, such as abuse or alcoholism;
- Separation where the parties have lived apart for two years or longer for any reason, and both parties consent to the divorce;
- Separation where the parties have lived apart for five years or longer.
In all cases a divorce follows the same basic process, but depending on the nature of the divorce, and whether there are any contentious issues involved, there may be some additional steps or processes. For instance, if there is a dispute over asset distribution or child custody, then the divorcing couple must try to resolve the dispute out of court, but they have the option to petition to the court if they can’t reach an agreement.
The Divorce Process
The process of getting a divorce involves three stages: filing a petition, applying for a decree nisi, and obtaining a decree absolute.
The petition for divorce is filed to start the divorce process even if the court does not become involved. To file for divorce you must have a justifiable reason for divorcing, such as adultery, desertion, unreasonable behaviour, or separation. As long as there is a justifiable reason, it’s not necessary for both marriage partners to agree on the divorce.
However, if you are the one filing for divorce, it can be helpful to discuss the petition with your solicitor before filing. Your solicitor can send a draft of the petition to your spouse, which gives them a chance to raise any objections before it’s filed. If any potential problems can be solved before you file the petition, it can help make the process go more smoothly.
Once the petition is filed and processed, the next step is to obtain a decree nisi.
A decree nisi is a legal document that shows there is no legal reason preventing a divorce from being granted. To obtain this document one partner files an application form. Once the form is processed the other partner is informed of the request. If they don’t make any objections, the decree nisi is granted.
If the other partner does not agree, the person petitioning for the divorce must request a case management hearing. At this hearing a judge listens to evidence from both sides and decides whether the decree nisi can be given.
Sometimes the judge decides not to grant the decree because they want to hear more information from the petitioner. In these cases they might instruct the petitioner to provide more information at a second court hearing.
The decree absolute can be granted six weeks after you have obtained a decree nisi. The reason there is a waiting period is to provide an opportunity to finalise any custody or financial arrangements before the divorce is granted. If either party should change their minds about any of the arrangements, the waiting period also gives them a chance to try and negotiate new settlements.
After the waiting period is up, the petitioner files a request to make the decree nisi a decree absolute. After the court receives the request and reviews all the documentation relating to the divorce, the decree absolute is issued, which legally ends the marriage.
How Can A Solicitor Help?
There's no legal requirement for the involvement of a law firm or solicitor in a separation or divorce, but it can be useful for both parties to have a solicitor represent them. A solicitor can provide legal advice and assistance, and serve as an advocate or representative, helping ensure your best interests are safeguarded at all stages of the process. In separation and divorce, solicitors can:
- Offer legal advice at any stage of separation or divorce, including during mediation or collaborative law proceedings, or during a court hearing. Note that if you’re going through the collaborative law process, your solicitor should be someone who’s trained in this kind of law.
- Help with completing and filing legal forms and other documentation.
- Help with asset calculation, and determining what assets you own outside the relationship or what shared assets you're entitled to a portion of.
- Help you apply to the courts for help settling an issue relating to asset distribution or child custody.
- If you or your child has been a victim of abuse or violence within the relationship a solicitor can help with applying for a protection order.