Your Guide To Divorce & Separation

When you separate from a spouse in the UK, you have the option of staying married but living separately, obtaining a judicial separation or divorcing.

In this Guide, our Family Law Solicitors explain your options.

Contact OTS Solicitors Today for Expert Separation and Divorce Advice.

Separation options

The three main separation options are:

1. Living separately.
2. Obtaining a judicial separation order from the court.
3. Getting divorced.

Divorce and Separation Solicitors in London recommend that you review your options with a lawyer to determine which option best suits your circumstances.

Living separately

If you decide to live separately but do not legally separate, you remain legally married. However, the decision to live separately can have significant consequences:

1. A partner may be entitled to state benefits as a single person or single parent.
2. A separated parent may be able to apply to the Child Maintenance Service for child support.
3. Financial ties remain, and financial claims can be made later on.
4. If one spouse is in the UK on a Spouse Visa, the decision to permanently separate must be reported to the Home Office. This will result in the Spouse Visa being curtailed.

The decision on whether to live separately or start proceedings should be carefully considered because:

1. If you separate without reaching a financial settlement and your assets increase in value, your spouse may receive a larger financial settlement than they would have received if you had started divorce proceedings and obtained a financial court order after a short marriage with limited assets.
2. If you separate and your spouse is at risk of bankruptcy or if their assets fall in value, then you may receive a reduced financial settlement through the decision to delay starting divorce proceedings and obtaining a financial court order.
3. If you are subject to UK immigration control and in the UK on a Spouse Visa, you may need immigration legal advice on settlement using the domestic violence concession to apply early for Indefinite Leave to Remain or switch to a different type of visa.

A Family Lawyer can advise on the legal options you can take to protect yourself if you want to separate without getting divorced or obtaining a decree of judicial separation. These include:

1. Negotiating a separation agreement.
2. Obtaining a child arrangement order.
3. Securing a non-molestation order or occupation order if there was domestic violence during the relationship.
4. Writing a new Will.

Applying for a decree of judicial separation   

Either spouse may apply to the family court for a decree of judicial separation. The decree does not end the marriage but is formal evidence of your separation. If you decide to divorce later, you will need to complete the same divorce proceedings as someone who had separated and not obtained a judicial separation decree.

There are no circumstances where you must produce a decree of judicial separation to prove your separation. In England, a statement that you have separated from your husband or wife is usually sufficient.

You may prefer to obtain a judicial separation if there are religious reasons why you cannot apply for a divorce.

Your decision to apply for a judicial separation should not be based on your husband or wife not consenting to a divorce. After the introduction of no-fault divorce proceedings, a spouse does not require:

1. The consent of their spouse to a divorce.
2. Proof that their spouse has behaved unreasonably or committed adultery.

The judicial separation court process is like no-fault divorce proceedings, but the outcome is not the same because:

1. You remain legally married.
2. You can get a financial court order in judicial separation proceedings, but you cannot get a complete clean break financial order. Therefore, some financial ties may remain.

Applying for a no-fault divorce

No-fault divorce allows either spouse to initiate divorce proceedings without either having to explain why the marriage has irretrievably broken down. That means there is no guilty party and no requirement to mention unreasonable behaviour or adultery. In addition, there is no requirement to have been separated for a specified period before you can file a no-fault divorce application. Because there is no blame in a no-fault divorce application, it is now difficult for a spouse responding to a divorce application to defend the proceedings and object to the divorce.

Either spouse can apply for a divorce in England and Wales, or you can make a joint application. The process is similar whether you apply individually or jointly.

There are four steps in the no-fault divorce process:

1. Divorce application – joint or individual.
2. Applicant/s confirm they want to proceed with the divorce application.
3. Conditional divorce order made by the court.
4. Final divorce order made after waiting at least six weeks after obtaining the conditional order.

The divorce will typically take around six months to complete because:

1. Between steps one and two, there is a twenty-week wait.
2. Between steps three and four, there is a six-week wait.

The two time periods cannot be shortened as they are part of the no-fault divorce process. Although the divorce process cannot be sped up, you can:

1. Negotiate a parenting plan to record the agreed custody and contact arrangements for your children, or apply to the court for a child arrangement order.
2. Reach a financial settlement and record it in a separation agreement that is ready to be converted into an agreed financial consent order once the conditional divorce order has been obtained. If you cannot reach an agreement, you can make a financial remedy application after the divorce proceedings have started.

Contact OTS Solicitors Today for Expert Separation and Divorce Advice.

Frequently Asked Questions on Separation and No-fault Divorce

What are the advantages of judicial separation over divorce?

There are no advantages of a judicial separation decree over a final order of divorce unless getting divorced is not an option for you for religious or family reasons.

There can be significant advantages to divorce over judicial separation. A Family Law Solicitor can explain how, in your situation, a divorce may be the preferred option.

Can I start divorce proceedings when I choose to do so?

You must have been married for at least 12 months before you can initiate divorce proceedings. If you have been married for under 12 months, a Divorce Lawyer can help you get the divorce paperwork ready so you can apply for a divorce as soon as you can. The Divorce Solicitor can also help you with other aspects of your separation, such as negotiating a parenting plan, drafting a separation agreement, or preparing a financial court order.

Is a separation agreement the same as a financial court order?

A separation agreement and a financial court order both record the financial settlement reached between a husband and wife. It may be necessary to record the asset split in a separation agreement if there is a delay in commencing divorce proceedings or an urgent need for a formal record of your agreement.

A financial court order is a binding order from the family court. For peace of mind, you need to convert the separation agreement into a financial consent order. This can be achieved without a court hearing.

Can we sell the family home if we separate but do not divorce?

You can sell the family home if you are separated. It's best to document the disposition of the equity in the family home in a separation agreement. The agreement should also cover what will happen to any family debt, savings, or other assets, as well as the spousal maintenance and child support arrangements. If you divorce later, the agreement should be converted into a binding financial consent order.

Can a spouse object to a no-fault divorce application?

It is difficult for a spouse to oppose a no-fault divorce because all you need to show is that, in your opinion, the marriage has irretrievably broken down. This is your opinion. If your spouse does not share your view, it does not give them valid grounds to oppose your application.

The rare occasions when no-fault divorce proceedings can be defended include cases where one spouse alleges the court lacks jurisdiction. This could be because the spouse states that the divorce occurred overseas or that the marriage ceremony was invalid.

Talk to OTS Solicitors about your separation

Whether you and your spouse have decided to separate because you have drifted apart or you are unsure whether divorce proceedings are the right step for you, our experienced Family Law Solicitors can help.

We know that deciding to separate or start divorce proceedings is challenging. We will provide all the support and family law advice you need by explaining divorce, children's law, and financial settlement terminology and guiding you carefully through the process.

Contact OTS Solicitors Today for Expert Separation and Divorce Advice.

Appointments are available at our London office, by phone, or via online consultation.  

Our lawyers speak Arabic, Armenian, Bengali, Farsi, French/Mauritian Creole, Gujarati, Hindi, Spanish, Tamil, Tagalog/Ilonggo, and Urdu/Punjabi.

 

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