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Considering divorce or separation? Here’s what you need to know

Traditionally the UK sees an increase in divorce proceedings in January. While many may assume it is as simple as filing a document to seek a divorce, it’s rarely as straightforward as this.

To further confuse matters, many people are uncertain of the differences between divorce and legal separation.

Here, Stuart Daniel, a Senior Associate with Mander Hadley who specialises in family law, explains what you need to know about divorce and separation:

Divorce:

Although the law is due to change in April 2022, currently in the UK there is no such thing as a ‘no-fault divorce’, save where a married couple have been separated for more than 2 years and both consent to divorce. This means that, at present, where a married couple have not been separated for 2 years or more, it is necessary to proceed with a divorce based upon fault, i.e. one party blaming the other for the irretrievable breakdown of their marriage.

The person who starts proceedings needs to prove that the marriage is at an end by establishing one of the following facts:

Adultery – currently this only applies when a person has been unfaithful with someone of the opposite sex. A relationship with someone of the same sex does not count as adultery.
Unreasonable behaviour – examples could include domestic abuse, coercive behaviour, social isolation, alcohol or drug issues or financial recklessness, but small issues such as excessive DIY or working long hours have been used as grounds for divorce.
Desertion – this can sometimes be difficult to prove. A person must have intentionally deserted their spouse continuously, for at least two years.
Separation with consent – where a couple have been separated for at least two years and the other party agrees to the divorce.
Separation without consent – If a couple have been living apart for at least five years, either party may issue divorce proceedings without the other’s consent.

Judicial separation:

Judicial separation allows a couple to live apart without divorcing and, importantly, there is no need to prove that the marriage has broken down irretrievably. Proceedings still have to rely upon one of the five facts on which a divorce can be commenced.

A legal separation is an option if:

There are religious reasons against divorce
The couple have been married less than a year
The couple want time and space to work out if they really want to end the marriage

There are, however, a number of longer-term issues that need to be kept in mind. For example, after a decree of judicial separation, both parties have the right to live in the house they share, but are not under any obligation to live together. A decree of judicial separation does not formally dissolve or end the marriage and formal divorce proceedings can be issued by either party.

Both parties can ask the court to exercise its power in relation to financial matters however a final clean break financial settlement cannot be achieved within judicial separation proceedings as it remains possible for further claims to be pursued in subsequent divorce proceedings, such as a pension share order.

Keep things amicable

Although ‘no fault’ divorces are not yet possible, this does not necessarily mean that a marital split needs to be acrimonious.

Here are a few suggestions for keeping, what is a stressful and upsetting situation as amicable as possible:

Plan how to tell your spouse you wish to formally separate or divorce and why
Keep ‘blame’ out of the situation wherever possible
Focus on any children involved and place their needs first
Be patient with your spouse and give them time to adjust
Negotiate the terms of any settlements in good faith, be fair, and stick to agreements made
Consider mediation as a way to work through any differences

At Mander Hadley, we adopt a conciliatory approach to resolving Family Law disputes in order to reduce acrimony and to keep your legal costs to an absolute minimum. We can also assist you with relationship planning to reduce the risk of potentially costly future disagreements.

We can help you to complete divorce, judicial separation, nullity or civil partnership dissolution proceedings.

We can also advise you on what you can reasonably expect to achieve, regarding the division of property and finances and explain the best way to protect your position.

To find out more about our family law services, including separation and divorce, please contact us.