When a couple decide to separate consideration should turn to whether the separation is permanent, and, if so should there be a divorce or legal separation? Obtaining advice from a family law specialist early in the process is vital so that you can understand the options available to you and make an informed decision.
A person can apply for a divorce after 1 year of marriage if there has been irretrievable breakdown of marriage, which must be demonstrated in one of the following ways:
- Unreasonable behaviour.
After additional time has expired, irretrievable breakdown of marriage can also be demonstrate by:
- 2 years separation by consent.
- 5 years separation without consent.
Most people issue a divorce petition on the grounds of unreasonable behaviour or adultery, as these are the main ways you can obtain a divorce without having to wait 2 years. A 2 years separation petition requires the consent of the other party; therefore, unless the other party consents or you are prepared to wait for 5 years one party would have to commence proceedings either on the grounds of unreasonable behaviour or adultery.
Nowadays, citing unreasonable behaviour or adultery is not regarded as a hostile step, but simply a means to an end and there is usually no detriment to the party being divorced, financially or otherwise. Parties are encouraged to agree the particulars of divorce where possible and there is now no need to name a third party in adultery proceedings.
The Divorce Process
Once the paperwork has been prepared, and has been filed with the court, it is subsequently sent to the other party and they are asked to acknowledge receipt by completing an Acknowledgement of Service form. If they do not complete and return the Acknowledgement of Service form, then consideration will need to be given to hand serving the petition using a Process Server or Bailiff.
Once the Acknowledgement of Service form has been returned to the court, or the court is satisfied the other party has received the petition, the Petitioner, the person who issued the divorce petition, can apply for Decree Nisi. The judge will consider the divorce papers and if the judge is satisfied everything is in order he will set a date for pronouncing the Decree Nisi of Divorce. The Court usually sets a Decree Nisi date with around 2 to 3 weeks notice to both parties so if there are any issues relating to the divorce either party wishes to raise, they need to so before Decree Nisi is pronounced.
Six weeks and one day after Decree Nisi, the petitioner can apply for the Decree Absolute which will finally dissolve the marriage. If the petitioner does not make the application, the respondent can make an application (to eventually apply for the Decree Absolute, but the process is not as straightforward as if the petitioner were to make the application).
Many people do not apply for Decree Absolute until financial matters have been resolved, as there can sometimes be detriment to applying for Decree Absolute until financial settlement has been agreed.
Who Should Be The Petitioner?
The advantage of being petitioner is that you are in control of the process, but your solicitor has to do the majority of work. Therefore, the divorce can be more expensive; however, it is sometimes possible to claim costs from the respondent. Most people agree to divide the divorce costs between them.
There is usually no detriment to agreeing to be the respondent, as it doesn’t mean that you will receive less financially or will be judged more harshly.
If one party does not live in England or Wales there may be issues regarding whether you can obtain a divorce in this country.
In addition, some people have a choice of countries where they could obtain a divorce and different countries adopt different approaches. It can therefore be very important to seek specialist advice about where the divorce should be issued. In some cases, it could be very detrimental to delay in obtaining advice as the divorce will continue in whichever country the petition was lodged. So, for example, if your partner is German and you want a divorce in the UK it is important to issue a petition quickly.
Defending A Divorce
Divorces are very rarely defended these days as people can usually agree a way forward as to who will issue the divorce and on what basis. Defending a divorce can be extremely costly, so it is very important to reach agreement in this regard.
A judicial separation is a legal separation via the courts. This requires a separation petition to be lodged with the court, on exactly the same grounds as divorce: unreasonable behaviour, adultery or 2 years separation by consent. However, unlike with divorce, there is no Decree Absolute so parties will simply remain married.
It is very unusual to obtain a judicial separation nowadays because there is usually no detriment or stigma to divorce. Most people believe that if the marriage has broken to the extent they require a separation they may as well instigate divorce proceedings.
If a couple doesn’t want to lodge an unreasonable behaviour or adultery petition, they can wait 2 years to obtain a separation on the grounds of 2 years separation by consent which negates the need to raise issues about the other person. However, it is very difficult to live separately and apart for those 2 years without financially regulating what will happen during that time. Therefore, it’s important to have a separation agreement, which can be drafted and agreed via solicitors, that sets out what you intend to do financially in the short term and long term. There are legal advantages and disadvantages of using a separation agreement rather than a divorce agreement, so it’s extremely important to discuss these with your solicitor so that you fully understand the implications of each approach.
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