Divorce and separation

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

Negotiating a divorce settlement

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.

Separation

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 are the victim of domestic violence
• your spouse does not agree adequate financial support for you or fails to make payments
• your spouse is refusing to give you access to the children
• there are international aspects to your circumstances (eg your spouse might file for divorce in another country, or take the children overseas)

Grounds for divorce

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:

• Your spouse has committed adultery and you find it intolerable to continue living with him or her. You can name the ‘co-respondent’ (the third party involved in the adultery) but it is not necessary – and is likely to increase emotional tension and legal costs.
• The unreasonable behaviour of your spouse makes it intolerable for you to continue living together. Unreasonable behaviour can include violence, infidelity (other than full ‘adultery’) or persistent unpleasantness. This is the most common.
• Your spouse deserted you against your will, and you have been living apart for at least two years.
• You have been separated for at least two years, and you both agree to the divorce. In principle, you can be separated while still living under the same roof – provided that you live independent lives (eg do not live together or share household chores). You can also have lived together for up to six months during the period of separation, though any time living together will not count towards the two years.
• You have been separated for at least five years.

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 proceedings

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.

1. Formal divorce proceedings start when the petitioner files the petition with the court. If you have children, you also send a form explaining what arrangements you propose for looking after them.
2. The court sends a copy of the papers to the ‘respondent’ (the petitioner’s spouse), who completes an acknowledgement of service form and returns it to the court. A copy of these details is then passed back to the petitioner.
3. The petitioner swears an affidavit that the information given in the petition is true, and submits an application to the court for the divorce to go ahead.
4. The judge checks that the all the paperwork is in order (including any arrangements for children) and fixes a date for the Decree Nisi.
5. The Decree Nisi is issued. This gives anyone who objects to the divorce six weeks to let the court know why.
6. After six weeks and a day, the petitioner can apply for the divorce to be finalised. (If for any reason the petitioner does not do this, after three months the respondent can apply.)
7. Once the Decree Absolute is granted, the marriage is over.

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:

• Financial issues on divorce
• Children and divorce