If your marriage breaks down issuing divorce proceedings may not be your priority or you may not be able to confidently satisfy one of the facts required for an immediate divorce. your priority may be to secure a financial settlement and divorce at a later date.
Several options are available to you:
- you can commerce Judicial Separation proceedings;
- have a Separation Agreement drawn up;
- deal with matters in an informal way
Seeking a Decree of Judicial Separation is the only means of becoming legally separated from your spouse. Seeking a Decree of Judicial Separation is not appropriate in the majority of cases as the procedure is very similar to divorce proceedings in that you still have to rely on one of 5 facts, see Divorce Fact Sheet. However, you are not required to state to the Court that the marriage has irretrievably broken down. Rather than Decrees Nisi and Absolute being obtained, as is the case with divorce proceedings, a Decree of Judicial Separation is granted.
This option may appeal to you on religious grounds or because you do not consider the marriage has irretrievably broken down. In the absence of financial issues being agreed between you and your spouse, either of you are able to commence ancillary relief (financial) proceedings immediately upon a Petition for Judicial Separation being filed with the Court. The same remedies are available as in Divorce proceedings, with the exception of a pension sharing order.
If at a later stage a decision is made to bring the marriage to an end, it is still necessary to commence divorce proceedings in the usual way.
If bringing the marriage to an end is not your priority or you do not have sufficient reasons for commencing proceedings, it is still possible to negotiate a financial settlement and to have the terms recorded in a Separation Agreement.
For such and agreement to succeed, both you and your spouse are required to make a full and frank financial disclosure at least to each other and sought legal advice.
The agreement will confirm the date of separation, and what has been agreed in respect of the matrimonial home and other assets. It can also confirm the arrangements for the children, who is to commence divorce proceedings in due course and on what ground and that within those proceedings the Court will be invited to make a Consent Order ratifying the terms of settlement.
Dealing with matters informally
You may believe you and your spouse agreeing financial issues between yourselves in an informal way, is an ideal solution. However, that carries tremendous risks, particularly if legal advice is not sought. you may have one understanding as to what has been agreed which differs from your spouse’s. As an example, selling the marital home and dividing the sale proceeds equally may not be an appropriate settlement as it may not have taken into consideration other assets, such as pensions and addressed any disparity of your incomes or your actual needs. Upon commencement of divorce proceedings in due course, the question of financial issues becomes a live issue again and the fact the above matters have not been considered may lead to acrimony and tension between you and your spouse.
For that reason you should seek legal advice at the earliest opportunity upon separation or where there is a likelihood that will happen
For more information, please contact Julie Wain on 01889 583871 or 01785 211411
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. (50587)