Divorce/Termination of Civil Partnership
Separating couples are left with three possibilities:
1 – Issue divorce proceedings.
2 – Issue judicial separation proceedings.
3 – Enter into a separation agreement.
The following is a summary dealing with the three alternatives.
In every case the parties have to be married for a period of one year before either party can petition for divorce. Again, in every case the parties have to prove that the marriage has broken down irretrievably. That can be proved by “unreasonable behaviour”, adultery (not applicable to the civil partnership) two years separation with consent, five years separation or desertion.
The party who commences divorce is known as the Petitioner and the other party is known as the Respondent. The Petitioner has to pay the court fee which is presently £410 and also has all the paperwork to deal with. The Respondent only has to complete one form known as an Acknowledgement of Service. The Petitioner is entitled to claim the costs of the proceedings and these can often be negotiated.
Unreasonable Behaviour – can cover a multitude of sins from simple arguments through to violence, excessive drinking and the like. As a court generally finds that the marriage has broken down as a result of the behaviour on both sides, solicitors tend to keep the allegations of behaviour to a minimum. In certain circumstances, if the behaviour is so bad it can have an effect on the finances. Generally it does not. What is unreasonable behaviour? It is viewed by the court from the standpoint of the person who is making the claim. What is unreasonable behaviour to one person may not be to another person. It may be violence at one extreme or bad temper at another. It is “a subjective test”, i.e. “how does it affect you”. Provided you consider the behaviour unreasonable then the court will accept your evidence.
Adultery – the definition is of having sexual intercourse with another whilst still married. The fact that parties have been separated for many years when adultery commences is not a defence. Again practitioners are encouraged to issue proceedings without involving a third party and the standard practice now is to issue an adultery petition stating that either the co-respondent is unknown, or if known not named.
Desertion – parties to live separately for two years, otherwise there is no definition by the courts and no general principle. The departing spouse must have the intention of bringing the co-habitation permanently to an end without reasonable care and without the consent of the other spouse. The separation cannot be consensual or there will be no desertion.
Two years separation – in addition to living apart for a continuous period of two years, both parties must consent to the divorce. Consent at any stage can be withdrawn. The petition simply identifies when the parties separated, and confirms that they both consent to the divorce.
Five years separation – if none of the above are applicable then this is the last resort. Petitions based on five years separation are rare and tend to arise where moral or religious feelings run high. Generally there is no defence to a petition based on five years separation, and therefore the majority of parties accept the inevitable and divorce sooner rather than later. The only defence is that of grave financial hardship. This again is very difficult to prove if one party wants a divorce and the other does not. There is very little the resistant party to a divorce can do other than delay matters. This is often a futile and expensive exercise.
This is a half-way house between being married and divorced. The grounds for the petition are exactly the same as those required for a divorce, however at the conclusion of the proceedings a Decree of Judicial Separation is made as opposed to Decree Absolute.
The effect of a grant of Judicial Separation is that the parties are no longer obliged to cohabit and the marriage continues. If either party to the marriage dies intestate (without a will) all or any of their real or personal property will pass as if the other party to the marriage was no longer living.
Judicial separation can be a useful process if the parties are elderly and are unable to agree a division of the capital. If the husband dies then the wife will become the lawful widow in due course, if she survives, and will be able to claim on any pension that the husband may have. It should be noted however that some schemes, for example army pensions, stipulate that no pension is payable to a separated wife. The actual terms of the pension must therefore be considered in each case.
Since pension sharing was introduced in 2001, the use of judicial separation has virtually disappeared as pensions can now be dealt with properly in divorce.
The court also has to look at the position of the children of the family and a statement of arrangements for the children has to be lodged with the court.
Procedures for divorce and judicial separation are the same. A petition is lodged with the court and served upon the Respondent. He or she will complete an Acknowledgement of Service whereupon the Petitioner will be in a position to file a statement and apply for either the Decree Nisi or the Decree of Judicial Separation. In divorce matters, the Petitioner can make an application for Decree Absolute some 6 weeks and a day after the grant of the Decree Nisi. The time scale is usually 4 to 6 months from start to finish.
The cost of a divorce and judicial separation proceedings are the same. If undefended the total cost inclusive of VAT and disbursements should not exceed £1,100.
Quite often parties separate amicably and are able to negotiate for themselves a division of the assets. In these circumstances they may enter into a contract or separation agreement. One of the terms is normally that once the couple have been separated for 2 years either may present a petition to the court based on two years separation and consent.
These agreements bring financial certainty to the parties for the future.
Where the parties are unable to agree the financial case the parties will have to issue either divorce or judicial separation proceedings so as to enable either party or both, to ask a Judge to decide what each of the parties should pay or receive.
For a separation agreement to take effect, the following conditions should be satisfied:
- Both parties to be separately advised by solicitors.
- Both parties to provide full and frank financial disclosure of their financial position.
- No undue pressure or duress.
- No bad legal advice provided to one party.
- It is basically a fair agreement.
Whilst the agreement is not 100% water tight, as the Family court always retains its inherent jurisdiction and has the ability to impose orders on parties rather than accept the parties wishes, the general rule is that provided the above conditions have been fulfilled, the court will be slow to set aside any agreement that the parties have made.