Divorce and separation

Divorce and misconceptions about separation

It is a common misconception that the parties must have been separated for two years or more before divorce proceedings can be issued, unless one party has committed adultery or behaved in a highly unreasonable manner.

In fact, it is not necessary to allege behaviour that is extreme in order to obtain a decree and it is often possible for the parties to agree the particulars of behaviour in advance, or for them to be pleaded in such a form as to give little or no offence to the other party.

Adultery prior to separation

Similarly, many people believe that they can then only rely upon adultery which occurred prior to the separation.

This is not so and where a new relationship has formed, it is frequently possible to agree that the petition will proceed on the basis of adultery without naming the co-respondent.

Formalising a separation

If one or both parties take the view that the marriage has irretrievably broken down, the principal advantage of formalising a separation within divorce proceedings is that the petition enables the Court to deal with the financial issues.

If an agreement has been reached an application can be made to the Court for an order in the terms agreed. The Court order provides, with one or two exceptions, a final division of the parties' assets so that, for instance, if one party has agreed to waive their claims for maintenance in return for an increased share of property, the agreement cannot be set aside at a later date.

If there is no agreement as to financial issues, (e.g., the matrimonial home cannot be sold) the petition provides the means by which the Court can be invited to make orders dealing with the parties' property.

Where divorce proceedings are not available

For a minority of people divorce proceedings are not available or are not a practical possibility. In those circumstances, exactly the same remedies, with two exceptions, are available by means of a petition for a decree of judicial separation. Alternatively, if the parties are not yet ready to divorce but wish to record the financial agreement which they have reached, a 'deed of separation' may be more suitable.

In nearly every case, the divorce petition proceeds undefended and without the need for a court hearing or a detailed examination of the allegations made by either party.

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Key Contacts

Rayma Collins

Partner & Head of Family Law

Naomi Hayward

Senior Associate & Collaborative Lawyer