What clients might be suitable for the One Solicitor: One Couple process (also known as Solicitor Neutral or Resolution Together)? I’m delighted to be joined in this blog by Dr Angharad Rudkin, a child psychologist, author and creator of the What...
What is a divorce or dissolution? A divorce or dissolution will end your marriage or civil partnership (but note that financial claims remain open even after death unless you take action.)
There are formal legal processes which will include either or both separation, Judicial separation or divorce/dissolution.
You do need to have been married or civilly partnered for at least a year before you can apply (see Separation or Judicial Separation below) to divorce. There is no need to blame or allege poor behaviour or adultery. Actually, it’s not possible to blame the other person at all. As a couple, you can make a joint application for the dissolution of your marriage, same sex marriage or civil partnership. Making such joint applications, without rancour or blame is a great start to your future separate life. It's also possibly for just one of you to apply for the conditional order (see below) even if you've started the process jointly.
In the alternative, just one of you can make the application for the divorce. It’s very difficult to prevent a divorce from taking place. As me about your limited options. The Divorce rules are designed to enable an easy divorce to take place.
Once you have applied for the divorce and the other person has acknowledged it’s possible to apply for the conditional order (this used to be called the decree nisi), either jointly or just one of you.
You will need the dissolution of your marriage or CP to be at the conditional order (stage of the divorce before you can apply to the court for a financial remedy order see Financial Settlements). You must always obtain a financial remedy order from the court, even if you have substantial assets or no assets at all. Look at the different ways to straighten out the finances - Mediation and Sorting Things Out.
There is a minimum period of 20 weeks between the divorce application and your application for a conditional order (previously called the decree nisi). This is a cooling off period to give you a chance for reflection (and maybe even a reconciliation). However, where divorce is inevitable, this gives you time to plan for the future and sort out the finances Financial Settlements and making arrangements for the children - see Child Arrangements.
How long does it take to divorce?
It’ll therefore take 26 weeks from the divorce application being issued before the final divorce order can be made. But note:
- You ought not to apply for your final divorce order until you have a financial remedy order from the court. This is because of the financial and other rights you will lose if your ex should die BUT you don’t yet have a financial remedy order from the court. If you have a pension sharing order then wait for 4 weeks from the date of the order until you apply. It’s complicated but it’s safest to wait unless there are other considerations such as insolvency to consider. There are a few exceptions to this but always take advice from me before applying for the final order.
- If you (or your ex) apply for the final divorce order without waiting for the financial remedy order to be made you must not get re-married or form a Civil Partnership. If you do apply you may be in what is known as the re-marriage trap and may not be able to easily apply for a financial remedy order. That’s the general rule, but you should take advice from me before re-marrying or forming a new Civil Partnership.
Note you should consider whether or not the jurisdiction of England and Wales is the best forum for your divorce. It may be better to apply for your divorce elsewhere.
Note divorce has important affects on a will. You cannot be a beneficiary of each other's wills unless you make express provision.
Working with others
It’s really hard to break up. A break up is an emotional event with legal consequences. I can help with the legal side of things but what about the emotional? Even if it was you that ended the relationship it can be an emotional rollercoaster. See if there are others who can help; I recommend it as my experience is that it cuts down on legal costs. See the section Working with Others.
What is a separation?
Some couples don’t want to divorce right now but would rather simply separate and simply live apart. In the past this was common because couples did not want to blame the other in the divorce so had to live separately for 2 or 5 years to avoid doing so.
Today you may want to simply separate because have not been married or in a civil partnership for more than one year and so cannot divorce.
My advice is usually, that if the marriage is over, it is better to get on with Sorting Things Out for the finances and the children - just bite the bullet and divorce.
But if you definitely do not want to separate but not divorce then consider entering into a Deed of Separation. This will set out your arrangements for the finances and children. See Sorting Things Out for how to do this.
Advantage of a Deed of Separation
The Deed is a legally binding contract and it can be relied upon. The main advantage of a separation deed they are relatively quick and cheap to prepare and finalise.
Disadvantage of a Deed of Separation
It is not possible to share pensions; only a court order can achieve this, see Pensions and Divorce.
A deed is not the last word. Only the court has the final word. You will still need a court order (known as a financial remedy order). If circumstances have changed then it is still possible to ask the court to do something other than the Deed you’d agreed.
Even if the Deed goes unchallenged you will still need to obtain a final financial remedy order from the court. Otherwise, your potential financial claims continue, even after death.
What is a judicial separation?
A judicial separation is a formal separation which is sanctioned by the court, it is more than a simple separation or living apart. The court can make final orders in relation to a final financial separation including pensions. But you remain married.
Why obtain a judicial separation and what are its effects?
I would not usually recommend a judicial separation, as you remain married. But understandably sometimes couples have a religious or moral reasons to remain married or there is a good financial reason to remain married e.g., where foreign pensions cannot be shared. Also, you may want to sort out your financial affairs but have not yet been married for a year. Bear in mind that a judicial separation affects a will in the same way that a divorce does (i.e., a spouse can’t benefit from a will unless it’s expressly mentioned.)
Note that a divorce can be obtained at a later date.
Grounds for judicial separation
You simply have to state that you seek a judicial separation which is part of the application process in the judicial separation documents. Problems can arise if the forms are incorrectly completed.
Judicial separation procedure
The process is very similar to the divorce process as outlined above, with similar application, acknowledgement and cooling off period. The court sets a date for the pronouncement of the judicial separation and the order is made.
Sorting things out
I can help with agreeing a financial settlement as part of the divorce, separation and Judicial separation process. See the ways you can avoid court.