At Lovell Chohan Solicitors we have over 100 years of cumulative experience between our solicitors in dealing with divorce and separation matters.
There will be a number of matters that you will need to sort out with your partner if your marriage is to an end. These may include children, money, pensions, investments, housing, maintenance property and other possessions. Unfortunately, ending a marriage by divorce or separation can be a traumatic time for all parties concerned. At Lovell Chohan Solicitors we handle these matters tactically and with the utmost sensitivity. We are accredited specialist members of Resolution and the Law Society Advanced Family Law accredited scheme. When a marriage is to an end there are a number of authorities that the parties will need to inform, including the tax office, banks, credit card companies, DWP and other authorities.
Separating informally
As a married couple you can informally separate without the need to formally get divorced. You will need to inform the various authorities of your separation and in certain cases you have a legal duty to inform the following:
- your benefits office, if you're getting a welfare benefit such as income-based Jobseeker's Allowance, income-related Employment and Support Allowance, Pension Credit or Income Support
- HM Revenue and Customs, if you're getting tax credits
- your local council if you pay council tax or you get Housing Benefit or Council Tax Benefit.
If matters such as money, housing property, children and maintenance are greed between you and your partner then you may deal with these matters without going to Court to seek either a Judicial Separation or a Divorce. You must however be aware that if in the future the arrangements breakdown and you do go to Court your arrangements may affect any future decisions made by the Court and the Court will be able to change these arrangements if it considers them to be unreasonable or if they are not in the child’s interest.
Separating with a separation agreement
Instead of separating informally, a couple can separate by way of a signed separation agreement. This is an agreement entered into by both parties who no longer wish to live together. It formalises issues of maintenance, property and children. The usual matters included in a separation agreement are as follows:
- to live separately
- not to pester intimidate or harass the other partner
- to provide financial support (maintenance) for the other partner. A separation agreement would normally say that maintenance will stop if the partner starts living together with a different partner. Any agreement not to apply to court in the future for financial support does not count legally
- to provide financial support (maintenance) for any children of the relationship. Any agreement not to apply to a court or to the Child Support Agency in the future does not count legally
- who the children should live and have contact with and the quantum of contact.
The bonus of a written agreement is that it fully sets out matters agreed between the parties and if matters end up in Court it will be easier for the Court to see what had been agreed. Separation agreements do not bind the Court and if the arrangements are unreasonable or not in the best interests of the child the Court will change them. If you need to discuss these matters further, then please contact us.
Judicial separation
An alternative to Divorce is a Judicial Separation. This is an order that the Court may make declaring that the parties are Judicially Separated. It does not end your marriage and you are not free to remarry until such time as you obtain a divorce. Very few parties apply for Judicial Separation and only do so on grounds of religion or moral objections to divorce.
Divorce
There is an absolute time bar of one year before you can commence divorce proceedings, and therefore the parties must have been married for at least one year before commencing divorce proceedings. In addition to this the marriage must be recognised as being valid by the English Courts and you must satisfy certain rules about how long you have lived in the United Kingdom.
If matters are agreed between the parties the divorce is termed as an undefended divorce, as opposed to a defended divorce where one party is not in agreement.
Both defended and undefended divorces are dealt with in the divorce county court; or in England and Wales in the Principle Registry of the Family Division in London.
At Lovell Chohan Solicitors we can advise you through all the steps of either a defended or undefended divorce.
The court will grant a divorce if you or your partner can show that the marriage no longer exists and has broken-down irretrievably and in addition to this you will need to prove one of the five grounds for divorce, which are as follows:
- adultery
- your partner has behaved unreasonably
- your partner deserted you at least two years ago
- you have lived apart for at least two years if you both agree to the divorce
- you have lived apart for at least five years if one of you does not agree to the divorce.
Adultery
A court may grant a divorce if one of you has had a sexual relationship with someone else (committed adultery) and the other partner cannot bear to carry on living together. You must decide that you can not bear to carry on living together within six months of the adultery taking place. A woman who is raped has not committed adultery but a man who commits rape has.
The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it's satisfied that adultery has occurred and that the other partner can no longer live with the partner who has committed adultery.
If you both agree to the divorce, the court will usually only need statements and details of the sexual relationship. If one of you does not agree to the divorce, proof will be necessary and this may be difficult and expensive to get.
Unreasonable behaviour
A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the house or speak to friends and family.
If one of you does not agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence. Defended divorces are relatively uncommon.
If your partner has been violent towards you, you can get specialist help. At Lovell Chohan Solicitors we have Accredited specialist Resolution members who specialise in domestic abuse.
Desertion
Desertion means that your partner left home against your wishes with no good reason. If your partner was away continuously for two out of the last two and a half years, you can apply for a divorce without the agreement of your partner. If you live together for a total of up to six months during this period, this does not stop the desertion being continuous. A court will want proof of the desertion and, if one of you does not agree to the divorce, there may be disagreements about who deserted whom.
In Northern Ireland, desertion occurs where one partner deserts the other without reasonable excuse for an uninterrupted period of two years. There must also be an intention to desert the partner.
Living apart for two years
If you have lived apart (been separated) for two years continuously and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage. The two years apart will still be continuous even if you have actually lived together for up to six months in between.
Living apart for five years
If you have lived apart (been separated) for five years continuously, you can apply for a divorce without your partner's agreement. Your partner can object to the divorce on the grounds that it would cause unreasonable hardship. However, a court will usually agree to a divorce as long as you have been separated for five years.
The party commencing the divorce proceedings is termed the Petitioner and the other party the Respondent. The process of commencing a divorce is begun by filing a divorce petition and ancillary documentation if there are children involved. Here at Lovell Chohan Solicitors we can assist you to prepare these documents and file them with the Court.
Once the Respondent has filed his or her acknowledgement of service form, not defending the divorce it is usual to apply for a decree nisi. If the divorce is defended other special directions applications will need to be made. If you both agree to the divorce, the court will look at the petition and grant an order called a decree nisi. No court hearing is needed. At this stage the court will also consider any issues regarding the children and costs.
If you have children, the court will need to be satisfied that you have made satisfactory arrangements for them. The court may want to discuss the arrangements and possibly meet the children if they are old enough (nine years and over). A divorce which you both agree to can take up to six months if there are no children or money issues involved. It can take longer if children are involved and the court is not satisfied with the arrangements being made for them. Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a final order called a decree absolute. This confirms the divorce. A decree absolute will be made as long the court has approved the arrangements for any children. After a decree absolute has been made, either partner can marry again or enter into a civil partnership. A respondent can apply for a decree absolute 3 months after the decree nisi.
If you start divorce proceedings and your partner does not agree, they will have to fill in court papers called an Answer. They have to say why they do not agree that the marriage has broken down. There might be a court hearing for a judge to decide whether the marriage has broken down. These hearings are very rare, as in most cases a defended divorce will be resolved before a court hearing.
