Divorce is the legal process that ends a marriage. Although it is necessary to issue court proceedings to obtain a divorce, where the proceedings are not contested, the procedure does not involve court attendance.
It is only when couples obtain a divorce that final financial arrangements can be made in respect of their assets and maintenance obligations. This can be achieved by the court approving an agreement reached by the couple, or by the court making a decision as to the outcome.
The divorce procedure only deals with the ending of the marriage. Arrangements in respect of the children and the finances are dealt with separately.
To obtain a divorce:
- you must have been married for at least one year and
- either you or your spouse must have been resident in England and Wales for the past year or be domiciled in England and Wales and
- you must be able to confirm that your marriage has broken down irretrievably and that you can rely on one of the five available facts to show that this is the case:
- Your spouse has committed adultery and you find it intolerable to continue living with them.
- Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
- Your spouse has deserted you for a continuous period of 2 years or more.
- You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
- You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.
Although is not a legal requirement that a financial settlement is in place by the time the divorce is finalised, it is usually preferable that it is, so that each spouse has the benefit of their settlement in lieu of any financial losses that divorce brings such as the loss of death benefits under a spouse’s pension. Good legal advice is essential in ensuring that the timing of the divorce is not prejudicial.
For more information please see the divorce process article in Resources.
If a couple separates this does not require them to take any court proceedings. On separation couples may however wish to resolve the future arrangements for their children and also their property and finances. Agreements relating to finance and property can be incorporated into a Separation Agreement. Couples may decide to use a mediator to help sort out the arrangements when they separate.
It is possible for couples separating to obtain a judicial separation from the court, which is based on similar grounds to that required for a divorce. Judicial separation does involve court proceedings. At the conclusion of the process the marriage is not dissolved, but the couple are pronounced judicially separated. For couples, who perhaps for religious reasons do not wish to divorce, but wish to separate, judicial separation may be a preferred option. A judicial separation does have implications in terms of inheritance rights. Furthermore the courts powers to make orders for the division of assets are more limited than on divorce. After having been separated for five years, either spouse is entitled to seek a divorce, even if there has been a judicial separation.
The date of separation can have tax implications. It is therefore best to take advice in advance from an accountant, as to the tax consequences of a separation.
To contact Kim Finnis to discuss your separation or divorce call 01483 539100.