If you wish to formalise your separation and reach an agreement about financial arrangements on separation without involving the Court, you can enter into a Separation Agreement. The agreement would confirm that you and your spouse will live apart and would set out the financial arrangements agreed between yourselves. A Court Order could be made to reflect the agreed terms in any later divorce proceedings.
It’s important to note that a Separation Agreement doesn’t have the same finality as a Financial Remedy Order made in Divorce Proceedings. This means that either you or your spouse could make a subsequent application to the Court for Financial Orders.
However, if you both receive independent legal advice about the terms of the Separation Agreement and disclose your financial positions to one another, the Court is highly likely to uphold the terms it lays out.
The Divorce Process
Any couple seeking a divorce in England or Wales must have been married for at least a year before applying to the Court to start the divorce process.
In order to start divorce proceedings, the Court must be satisfied that the person applying for divorce meets one of what are known as the ‘jurisdiction criteria’. This is usually easy to satisfy, as it effectively means that the person applying for the divorce must be living in England or Wales, or live there most of the time.
In order to qualify for a divorce, you must be able to show that your marriage has irretrievably broken down. The reason for the ‘irretrievable breakdown’ must be based on one of the following five facts:
- Unreasonable behaviour
- Desertion for two years
- Separated for two years with spouse’s consent
- Separated for 5 years (no consent required).
The first two of the facts listed above are the most commonly used. This is on the basis that they’re the only ones that allow for the divorce process to be started without the need to wait a set period of time.
However, Adultery can’t be relied upon if you and your spouse continued to live together for more than 6 months after you became aware of the infidelity. There is no need to name the person with whom the adultery took place.
Unreasonable Behaviour involves consideration of the nature of your spouse’s behaviour and more importantly its effect on you.
It’s ultimately for the Court to decide whether or not the behaviour is sufficient to say that your marriage has broken down to such an extent that you couldn’t reasonably be expected to live with your spouse.
That said, the allegations of behaviour don’t need to be serious. It is possible to set out mild particulars of behaviour to minimise any possible conflict, as long as the effect that the behaviour has had on you is made clear to the Court.
For example, you may wish to say that your spouse’s behaviour has been unreasonable as they have been working too much, or that they’ve failed to provide you with adequate love and affection. These reasons would be sufficient, provided that evidence of how the behaviour made you feel was provided to the Court.