Separation & Divorce

Separation

It is possible to set out the terms of a financial agreement reached between the parties in a Deed of Separation.

• A Deed of Separation leaves the status of the marriage intact.
• It is generally used when the parties wish to establish financial certainty but are not quite ready to proceed to dissolve the marriage.

Divorce

All marriages in England and Wales are presently dissolved on the same ground, namely that the marriage is deemed to have irretrievably broken down. That ground implies no element of fault, stigma or blame. The courts generally accept that it is a sterile and, more often than not, impossible exercise to analyse the reason for the breakdown of any marriage. However, the court requires evidence of the irretrievable breakdown of the marriage by reference to at least one of five "facts". These comprise very briefly:

• That one party has committed adultery. No details of the adultery need be known. No other party need be named;
• That one party has behaved unreasonably. The standard is a subjective one and sufficient elements of unreasonable behaviour usually exist in even the happiest of marriages so that for example a petitioner wife often simply alleges that the husband has worked too hard at the expense of time with his family, that he has declined to discuss the problems within the marriage or that he has declined to discuss family finances. Petitioner husbands often allege that their wives have simply failed to understand the pressures that a husband may be suffering at work. Where this ground is to be used, the respondent should be invited to approve in advance of proceedings starting the particulars of behaviour to avoid unnecessary hurt and upset;
• That the parties have lived separately and apart for a period of two years and specifically consent to the dissolution of the marriage. Although it is possible for parties to live separately and apart under the same roof, they must behave as lodgers;
• That one party has deserted the other. This is hardly ever used these days.
• That the parties have lived separately and apart for five years. If nothing else can be agreed, negotiated or forced through the courts this allows one party to achieve a divorce whether the other party wishes it or not.

Given co-operation all round, the divorce proceedings themselves from commencement to decree absolute are likely to take between four to six months. Attendance at court is not required.

The procedures are intended to be as painless as possible for everybody. There are certain time periods which must elapse before each step can be taken so that while there should be no undue delays, the proceedings do not take place at an unseemly speed, principally so that the parties have time to adjust to the process of redefining their relationship.

It is the petitioner who has the control of the speed at which the divorce progresses. A wife would be ill-advised to conclude a divorce in the absence of a financial settlement. This is generally not to gain a tactical advantage but to preserve her right as a widow to pensions and whatever other provisions may exist in the event that the husband dies and no financial agreement has been made providing for her future.

In the event that one party does not wish to be divorced, the process is infinitely more demanding, painful, slow, public and expensive.

Like most areas of law, very little happens without co-operation and any sensible lawyer will always try to instil a willingness to co-operate into the discussions.

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