Relationship Breakdown and Divorce

When you first seek legal advice on the breakdown of your marriage, you may be unsure whether or not your marriage has reached the end of the road.

At this early stage you may just want initial advice on formalising any separation and to have an idea of the process that would be involved to bring your marriage formally to an end.

You are also likely to be concerned about your financial situation and about arrangements for your children, and want an indication of how any issues between you and your husband or wife may be resolved.

Separation or Judicial Separation

Reasons for not considering divorce proceedings to end your marriage straight away could include having religious or moral objections to divorce, or not being sure that the difficulties in your marriage are irresolvable and wanting some time to think things through.

Your separation may be informal by either you or your husband or wife moving out of the family home; or formal by detailing any terms agreed on separation in a legal document (referred to as a separation agreement or a deed of separation); or official by applying to the court for a judicial separation.

Separation Agreement

Details of any arrangements agreed about financial matters or the children can be set out in this agreement. It can also confirm your intentions concerning divorce proceedings in the future, and whether there should be any further financial provision made at that time.

A separation agreement provides a degree of certainty without taking the steps necessary to bring the marriage formally to an end by divorce. However, you should be aware that only a court in divorce proceedings has the power to make an order that is final and binding — there is therefore a risk that the terms of the separation agreement may be reviewed and changed by a court in later divorce proceedings.

Judicial Separation

A judicial separation does not bring your marriage to an end but it does enable the court to make orders about financial matters, save for orders about pensions. You may want to consider judicial separation as an alternative to divorce proceedings where you have not yet been married a year (see below), or if you do not want a divorce for religious or other reasons. You still have to show one of the same reasons (facts) as for a divorce, but you do not have to show that your marriage has irretrievably broken down.

Divorce

No application for a divorce may be made unless you have been married for at least a year. Additionally you or your husband or wife must satisfy residence and domicile requirements before any application may be made.

Ground for Divorce (irretrievable breakdown of marriage)

The law requires you to show one of five reasons (facts) showing that your marriage has irretrievably broken down:

Adultery — that your husband or wife has committed adultery and you find it intolerable to continue to live together (you cannot rely on your own adultery to apply for a divorce). You will not be able to rely on this reason if you continue to live with your husband or wife for more than six months after the adultery is admitted to you, unless the adultery is ongoing.

It is not necessary to name the person with whom your husband or wife has committed adultery. Nor is it necessary for the adultery to have caused the breakdown of your marriage.

Behaviour — that your husband or wife has behaved in such a way that you cannot reasonably be expected to live together. You will not be able to rely on this reason if you continue to live with your husband or wife for more than six months after the last incident of behaviour you detail in your petition.

The petition will detail the particulars of behaviour you believe to be unreasonable, and it is helpful for you to consider what may be "first, worst and last" incidents of behaviour that led you to believe your marriage was at an end, so that reference can be made to these specific incidents.

Two years' separation — that you have lived apart for a continuous period of at least two years and your husband or wife agrees to a divorce.

Five years' separation — that you have lived apart for a continuous period of at least five years. In this case your husband or wife does not have to agree to the divorce, and it is possible for your husband or wife to prevent the divorce from being finalised if he or she would suffer grave hardship.

"Living apart" means living separately — but not necessarily at separate addresses. If you have carried on living at the same address, then you will have to confirm during the divorce proceedings that you have led separate lives under the same roof.

How To Get Started

At our initial meeting with you we will discuss which of the reasons set out above may be applicable in your case, advise you on what basis you may apply to the court for a divorce, and go through the relevant forms and documents with you.

If you start the divorce proceedings by issuing a divorce petition you are called the Petitioner; your husband or wife who receives the divorce petition is called the Respondent.

Timescale

Where both you and your husband or wife co-operate in completing the necessary documentation and there are no disputes over financial matters or the children, it is possible to obtain a divorce within four to six months from start to finish.

There are two formal stages to the process. The first stage involves the court considering the paperwork and establishing that the marriage has irretrievably broken down, leading to the first divorce decree being made (the Decree Nisi). There is then a mandatory waiting period of six weeks (which can be shortened in some circumstances) before the second stage, wherein the Petitioner can apply for the final decree of divorce that will end the marriage (the Decree Absolute).

In cases where agreement has not been reached on how the financial matters should be dealt with, however, it is likely that application for the Decree Absolute will be deferred until these have been resolved.

One point worth noting is that while the Decree Absolute ends the marriage, it does not bring to an end any potential claims husband and wife may have against each other for maintenance and/or capital. However, it is possible for these potential claims to be dismissed by agreement, so that an attendance at court is not always necessary.

Defending a Divorce

Most divorces are not defended. The only valid bases for defending a divorce are: that the allegation of adultery or unreasonable behaviour is untrue; that the desertion requirements or separation qualifying periods have not been met; that the defence of grave hardship applies in cases relying on the fact of five years' separation.

Nullity

In some unusual circumstances, it may be possible to seek an annulment of the marriage. There are various grounds which may be relied on, including bigamy or your husband's or wife's wilful refusal to consummate the marriage.

In all proceedings for divorce, judicial separation, or nullity, the court has wide powers to deal with financial issues.

Article first published May 2005
Revised August 2006