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How is a divorce defined?
First let’s start with the basics and define what divorce is and how it can come about. Divorce is the method by which couples can legally end their marriage.
In England and Wales, you have to evidence that your marriage has ‘irretrievably broken down’ in order to get a divorce. You must also have been married for more than one year.
To apply for a divorce the ‘petitioner’ (the person filing for divorce) must state on the divorce petition one of five ‘facts’ commonly referred to as grounds for divorce:
- Unreasonable behaviour– behaviour such that you can no longer tolerate remaining married to your spouse. This behaviour can be subjective so can relate to specific behaviours or broader actions or living arrangements you find unreasonable.
- Adultery– that your spouse has had sexual intercourse with another party of the opposite sex. If your partner has been unfaithful with someone of the same sex, technically they will not be deemed to have committed adultery. Although you will be able to cite their behaviour in a petition for unreasonable behaviour, instead. It also applies if you are in a homosexual relationship and your civil partner has a same-sex extra-marital affair.
- Separation for two years with consent– you have been separated for at least two years and both of you agree to the divorce. If you cannot agree, then you will either have to issue a petition based on your spouse’s unreasonable behaviour, or wait an additional three years (see below)
- Separation for five years– you have been separated for at least five years. In this case, you do not need the agreement of the other party
- Desertion– your spouse has left you without your consent, without a good reason, and for the purpose of ending your relationship for at least two years. These days, this ground is rarely used, not least because it is so difficult to prove because it relies on evidencing the intent was there. Additionally, there is a bar of two years before you can petition on this ground. For example, your spouse may not say anything and just go to work overseas for two years. If at the point of leaving, they had no intention of returning, it would qualify as a period of desertion. However, they may not have had this intention until they’d been absent for a year, in which case it would only be considered desertion for one year and therefore fail to overcome the two-year bar. This is why most people petition under either two years separation (with agreement), five years separation (without agreement) or unreasonable behaviour.
If you can prove one of these grounds, the Court will issue two decrees – a Decree Nisi and a Decree Absolute. Once the Court has issued the Decree Absolute, your marriage is legally ended.
What is ‘judicial separation’?
Judicial separation allows you to legally separate without your marriage being ended. You can do this even if you have been married for less than one year.
Unlike divorce, you do not have to prove that your marriage has irretrievably broken down in order to separate. However, you do have to indicate the grounds on which you want the separation to occur, and these are the same as the five outlined for divorce above.
While a divorce requires two decrees from the Court, judicial separation just requires one decree, called a Decree of Judicial Separation. Once you have received this you are no longer legally a couple, but you remain married and so you can’t then remarry.
Divorce and judicial separation compared
Divorce and legal separation are similar in several ways:
- You don’t have to continue to live together
- The Court can exercise its power to divide your financial assets (with the exception of pensions)
- If your spouse is named as a beneficiary in your will, the will is no longer valid unless you make a new will specifically naming your spouse as a beneficiary.
The main differences between a divorce and a judicial separation are:
- If you get a divorce your marriage is legally over. A judicial separation means you remain married
- When you petition for divorce, you have to cite one of the five grounds in order to prove that your marriage has irretrievably broken down. While you have to cite one of the grounds for judicial separation, you don’t have to prove this
- Once you are divorced you can remarry. You cannot remarry after judicial separation
- In England and Wales, you have to wait until you have been married for at least one year to get a divorce. You can apply for judicial separation at any time
- The Court can split a pension during divorce but cannot exercise these powers for judicial separation.
Is judicial separation the same as a ‘separation agreement’?
No. Judicial separation requires an application to be made to the Court while a ‘separation agreement’ is something you can make informally between you and your spouse.
If you haven’t decided whether you want to end your marriage, a separation agreement is a written agreement that can cover a range of areas including:
- What happens to your home and who continues to live there
- Arrangements for children, including where they live (residence) and who they should spend time with (contact)
- Who pays any mortgage, rent, or bills
- Who is responsible for any debts, such as loans or credit cards
- How your assets are divided
- Whether one of you will pay maintenance to the other
By using a separation agreement, all these matters can be agreed without it needing to go to Court. It also provides some clarity in detailing what you and your spouse have agreed.
Bear in mind that, if you later do go to Court, the Court will take your separation agreement into account in the event of a dispute. The Court can rule against some of the arrangements you have made if they do not believe them to be reasonable.
The advantages and disadvantages of a separation agreement
- You and your ex benefit from the certainty that a formal agreement is in place. It can help you to know where you both stand and reduce arguments and tension
- You can agree that you will no longer live together. This benefits you as the other partner can’t later claim ‘desertion’ if you do want to get a divorce
- You agree that the relationship has ended
- You can include any aspects that are important to you
- Agreements that have been fairly negotiated will typically be upheld by the Court in the event of a dispute.
- Separation agreements are not easy to enforce in the event that one party does not stick to the agreement
- Both of you must agree to any changes
- If you do end up seeking a divorce, a Court can decide to ignore some or all of the contents of a separation agreement.
When might legal separation be appropriate?
We have seen that judicial separation tackles many of the same matters as a divorce, but you remain married at the end of the process. There are several reasons why you may want to consider judicial separation rather than a divorce:
- You have been married for less than one year
- You don’t believe in divorce, perhaps because of your faith. For example, divorce is only permitted in very limited circumstances in the Roman Catholic church
- You want more time to decide whether ending your marriage is the right decision.
- You have children and would prefer to delay a divorce until after they have grown up.
Remember that a legal separation does not end a marriage or civil partnership. So, you cannot remarry or enter into another civil partnership.
How do I apply for judicial separation?
You should apply to the Court using a Form D8 – judicial separation petition. You can download a copy of this form on the Gov.uk website.
You have to make four copies of the petition. Send three copies to your nearest divorce centre (County Court) and retain one for yourself. You must include a certified copy of your marriage or civil partnership certificate when you submit the form. Of course the wisest route is to seek legal advice so the agreement is correctly drafted and more likely to be upheld by the Court if required.
Can I get divorced after being legally separated?
Yes. If you have a judicial separation you can later apply for a divorce.
If you have been separated for more than two years, you can get a straightforward divorce as long as you both agree.
Remember that there is no such thing as an ‘automatic’ divorce once you have been separated for a specified period. You still have to complete a divorce petition and prove that your marriage has irretrievably broken down for one of the five reasons listed at the top of this page.
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