When a relationship ends, it is usually a time of mixed emotions. Even those couples who end their marriage amicably have experienced how daunting a divorce or separation can be – including the effects on their living and financial arrangements.
Occasionally, the term ‘unreasonable behaviour’ is often tarnished with blame and animosity. But this doesn’t have to be the case. For example, some parties may wish to pursue ‘judicial separation’ rather than a divorce. However, using unreasonable behaviour as grounds for divorce could be another option if you haven’t been separated from your spouse for two years.
What is the difference between divorce and judicial separation?
Unlike a divorce, you can apply for a judicial separation at any time. A judicial separation does not prevent the parties getting divorced at a later stage. Unlike a divorce, judicial separation only has one stage: the decree of judicial separation.
In a divorce, there is a two-stage process:
- Decree nisi
- Decree absolute (six weeks and a day afterwards).
What are the grounds for judicial separation?
Under the law for judicial separation, you do not need to prove that the marriage has broken down irretrievably. The grounds for judicial separation are the same as the grounds needed for a divorce under the current law:
- Unreasonable behaviour
- Desertion for a period of at least two years
- Two years’ separation with consent
- Five years’ separation when no consent is needed.
If your partner has committed adultery, this is a valid reason for a divorce.
Your partner will need to admit to the adultery, or there needs to be evidence of the adultery. If your partner does not agree and you cannot prove your partner has had sexual intercourse with another person, you may struggle to prove it ever happened. In this case, you should proceed on the grounds of unreasonable behaviour.
If you feel that your partner has behaved in a way that has caused your marriage to break down, then this is the way to go.
In every case, you can only get a divorce if you have been married for a minimum of one year. You may feel it necessary to cite unreasonable behaviour, if for example you and your partner have been married for 18 months and feel you are not compatible. This can be worded in a delicate way to avoid direct blame on either party.
This means that you have been abandoned by your spouse.
You can claim desertion if your spouse has left the property, or left you and your children. You will need to have been deserted by your partner for at least two years. This is probably the least common grounds for divorce as it needs strong evidence. For example, you would need to prove that your spouse left you without your consent and that you did not want your relationship to end.
Two years’ separation – with consent for the divorce
If you and your partner have not been in a meaningful relationship for two years and they agree that you should divorce, this might be the best option for you.
You can still live together and cite two years’ separation, but you need to show to the court that you have not lived together as man and wife (i.e., engaged in sexual relations, behaved like a couple, gone on holiday, eaten together, slept together, socialised together etc.).
If you and your partner consider that your marriage has been over for two years, then your partner must consent to this, and state this on the acknowledgement of service.
You need to be careful when citing the grounds of two years’ separation, as consent is required. If your partner ignores the paperwork or does not consent to your divorce going ahead, the court cannot progress the divorce. You need to make sure that both you and your partner agree that your divorce is to go ahead.
Five years’ separation – without consent for the divorce
This is similar to two years’ separation; however, your partner’s consent is not required for this and the separation term is five years.
For example, if you have not been a couple for five years, and your request for divorce proceedings is ignored, you can communicate with them via alternative methods. This can be anything from SMS and email to Facebook Messenger.
In both cases – two years and five years – take care with any period of reconciliation. The date of separation will have to begin from the end of the period of reconciliation.
Filing for judicial separation or divorce
Rather than a “Decree Absolute”, which you receive after a divorce has been finalised, you will receive a “Decree of Separation”. You will no longer be seen as a “couple” but will remain married.
You can still go through division of assets upon a judicial separation; however, the “pension pot” cannot be considered or settled upon by the court, unlike with a divorce. You also cannot remarry after a judicial separation, but you can remarry when you receive “decree absolute”. You should also be aware that your ex-spouse is not prevented from applying for a divorce if you decide to proceed with a judicial separation.
How can Optimal Solicitors help?
At Optimal Solicitors, our expert family law team can help you decide which ground for divorce is the most suitable for your circumstances. Our solicitors will listen to you and your families’ circumstances and advise you through the divorce process.
It is important to ensure that you are aware of the effect either a divorce or judicial separation can have on your financial and living position. For more information and advice on the grounds for divorce, please get in touch with our family law team on 0161 250 7771 or contact us via our online form.