You must have been married or in a civil partnership for at least a year before beginning divorce or dissolution proceedings. However, there are steps you can take during this time to get ahead regarding your financial arrangements by entering a separation agreement or obtaining a judicial separation.
Judicial separation before divorce
To get ahead regarding your financial arrangements before you divorce, you can obtain a judicial separation in the first year. This is a formal separation, sanctioned by the court, which enables it to make orders about matrimonial assets, similar to those made on divorce without actually ending the marriage. Unlike divorce, however, you can apply for judicial separation any time after the wedding and do not have to wait a year.
To apply for judicial separation, you will need your original marriage certificate or a certified copy, as this must be filed at court with your application. There is no longer any requirement to prove any facts; you simply have to state you are seeking a judicial separation. This can be either a joint or single application and a court fee will be payable.
If everything is agreed, the court generally takes between 6 and 9 months to process the application from beginning to end. However, it may take longer to sort out if there are outstanding issues such as finances to resolve.
Could I get an annulment instead of a divorce?
If you don’t think your marriage or civil partnership is legal, you can ask the court for an annulment. However, your marriage must be either:
- Void: meaning the marriage/civil partnership never legally existed
- Voidable: meaning the marriage/civil partnership was legal when it was registered, but became illegal.
Some reasons for getting an annulment include:
- One party was already married or in a civil partnership
- One party did not properly agree to the marriage/civil partnership. For example, they were forced into it
- The couple have not had sex with one another since marrying (this does not apply to same-sex couples)
If we can’t legally divorce yet, will my spouse be entitled to a financial settlement when we can?
The law does not differentiate between those who have not been married for a year and are unable to divorce, and those who have been married many years and can. Your spouse may still be entitled to a financial settlement that reflects their contributions and needs. Financial settlements are there to end the financial obligations each party has to the other as soon as possible. This is why it may be sensible in the intervening period whilst you wait for the year to elapse, for you enter into a separation agreement to regulate your separation.
What does a separation agreement cover?
A separation agreement may be useful in cases where you haven’t been married for the requisite period of time (1 year) and wish to resolve your finances as soon as possible. This document will set out your financial arrangements and cover a wide range of areas, including:
- Who pays the mortgage, rent, and other household outgoings
- Who will live in the former family home and what happens if it is sold
- What happens to any debts or liabilities, savings, investments, or other assets
- What happens to cars or furniture, particularly those purchased together
- Whether maintenance is paid to support the other party and/or any children
- Child care arrangements, where the children will live and who with, and contact with the non-resident parent
Is a separation agreement legally binding?
Although separation agreements can be seen as a formal document, they are not legally binding in their own right. This is because it is not a court order, and the court will not have been involved in creating it. However, a separation agreement can still be challenged in a court under contract law. A separation agreement can also be made into a consent order later in the divorce process, which will make it legally binding.
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