Divorce or separation tends to be a difficult – sometimes hostile – situation, particularly when one of you feels let down or betrayed. Nevertheless, it is essential to try to co-operate in negotiating a reasonable agreement that is fair to both parties
When you are divorcing your spouse or partner, it can be impossible to ignore your feelings, and difficult to deal with a spouse (or partner) who is emotionally hurt or wants to get back at you using issues such as finances or access to the children. However, fighting it out in court simply makes the process more drawn out, expensive and painful. One option is to use a counselling service to help lower the emotional temperature and/or professional mediation to help you talk through practical issues.
At the same time, both of you are likely to need your own legal advice, particularly if there are substantial amounts of money at stake after a long relationship, or if children are involved. As part of the negotiation process, you will both need to provide clear information on your financial circumstances, including details of assets (eg property, savings and investments), debts, income and expenditure. Your solicitor will also need details of any children or other dependants.
Legally speaking, the question of whose ‘fault’ it is (eg if your partner has committed adultery) rarely affects what the financial settlement should be and who should look after any children. Your solicitor can advise you on what you can reasonably expect and deal with any paperwork, such as drawing up a settlement agreement or completing court filings. Unless you have each had legal advice, any agreement you reach might be open to challenge in court later.
For many couples, separation is a practical alternative to seeking a divorce straightaway. You can separate quickly, without needing to involve the court, and later use the arrangements agreed for the separation as the basis for arrangements on divorce. In some cases, separation may be a better long-term solution than divorce – for example, by preserving your spouse’s right to your occupational pension should you die. Of course, you would not be able to marry anyone else without getting a divorce first.
You can separate formally – drawing up a legal agreement – or informally, but in either case it is a good idea to negotiate agreement on finances and looking after the children. You may need to deal with practical issues such as sorting out any joint accounts and registering your right to live in the family home, and may also want to review your will.
Normally, one of you will leave the family home. Whatever financial agreement you reach will need to take this into account; you may both have to compromise and accept a lower standard of living to reflect the higher costs of running two separate households. If the practical and emotional circumstances allow, a couple can decide to remain under the same roof but living separate lives.
In most cases, it is a good idea to set out what you have agreed in a deed of separation. This helps to add certainty to the arrangements – though the terms of a separation agreement could still be overturned by the court. In principle, you can get the terms of your agreement recognised by the court using a judicial separation - but the procedure is very similar to getting a divorce, and usually only used where one of the parties has an objection to divorce (eg on religious grounds).
You may need to take legal action if:
You must have been married for at least a year and have a marriage that has broken down ‘irretrievably’. In order to start divorce proceedings, one of you must file a petition with the court. You can petition for a divorce on the basis of one of five facts:
If you are going to use an incident (eg adultery or domestic violence) as the basis for a divorce, you must not have continued to live together for more than six months after it occurred – otherwise, you are likely to have shown that it is not, in fact, intolerable for you to continue living together.
In general, the choice of who petitions, and on what basis, makes little difference to any financial settlement or agreement on looking after children – though violent behaviour, for example, may be relevant.
Where possible you should agree between yourselves which one of you will petition and on what basis – including negotiating the wording of any details given to support a claim of unreasonable behaviour. Arguing about this in court in a ‘defended’ divorce serves little purpose and can be very expensive.
Divorce typically involves two or three separate issues; the divorce itself (ie the ending of the marriage); negotiations over financial matters; and making arrangements for any children. Each of these is handled separately – for example, you can get divorced while negotiations over a financial settlement continue – though a judge will not grant a divorce without being satisfied that reasonable arrangements for looking after the children will be reached.
Provided that you have agreed the details between yourselves, the divorce process itself is fairly straightforward and should take about six months. You do not need to attend court in person.
In principle, you can deal with court paperwork yourselves, though you may prefer to use your solicitors – particularly if you are already involving solicitors to handle negotiations over finances and so on.
If possible, you should negotiate between yourselves how responsibility for legal costs will be shared. Court costs typically amount to about £385 (provided the divorce is undefended). Solicitors’ costs include fees for dealing with court paperwork (generally less than £1,000), plus additional fees for assisting in negotiations over children and finance. Total costs will depend on whether you and your spouse are able to take a constructive and efficient approach to negotiations, and on the complexity of the arrangements involved.
For more information on divorce and separation, see: