Divorce or separation
Our family team are experts in advising couples who are considering divorce or living apart. Getting advice in advance of making the decision can help in organising the practical implications of getting divorced and give the confidence to know what the possible outcomes will be.
There are three ways of a married couple separating:
- Judicial Separation
- Separation Agreement
To divorce you must have been married for one year, will need to establish that the marriage has irretrievably broken down and that one of five grounds can be set out in your Divorce Petition. At the end of the process you will no longer be married and will have to live separately. The arrangements in place for your children will be taken into consideration during the course of the divorce and a financial settlement can be arrived at. There has to be full and frank disclosure from both partners of all income, assets and liabilities and if voluntary disclosure is not possible or if one partner does not co-operate in the financial process, there are mechanisms for making an application to Court to ensure a result is achieved. The actual divorce itself can take as little as six months but where a financial settlement is involved it can take longer.
Again, it has to be shown that the marriage has irretrievably broken down and the five grounds are the same as those for divorce. However, at the end of the process, you will still remain married but will live apart. Judicial Separation is sometimes chosen by people who perhaps for religious reasons do not wish to divorce. The same financial settlement can be arrived at in Judicial Separation proceedings as in a divorce, with the exception that there can be no pension sharing arrangement. Judicial Separation proceedings commenced by one partner will not prevent the other commencing divorce proceedings.
This is where the partners voluntarily agree and record in a document that they will live separately and they set out the terms of their financial settlement. The parties do not go through the Court and will still remain married but will live separately. Because this is a voluntary arrangement, if one partner is unwilling to co-operate or if communication between the parties is difficult, this is not likely to be a successful course of action.
In any separation, any children will need to be given priority. If agreement cannot be reached as to with whom the children will live and how often they will be seen by the other parent, then an application can be made to the Court to resolve these issues.
In any of the above processes, maintenance for the other party and for the children can be dealt with.
A Separation Agreement will not prevent one party to the marriage starting divorce proceedings.
Rawlison Butler LLP is a member of Divorce Aid.