Available Options to Consider
If you’re married and you would like to permanently end your marriage, then divorce is the best course of action. But if, for whatever reason, you don’t want to get a divorce, then you can get a legal separation.
A legal separation is a solution for anyone who doesn’t agree with divorce, such as for religious or cultural reasons.
Depending on your circumstances, you may also be able to apply for an annulment, which declares your marriage void.
Separation Agreement
A Separation Agreement allows you to deal with most aspects of the financial side of your separation, without having to issue divorce proceedings first.
However, there are a number of things to consider if you are thinking about making a Separation Agreement:
- An agreement placed into a Separation Agreement is not enforceable or binding. In the years leading up to your divorce, your financial circumstances or those of your former partner might change so much that your Separation Agreement is unfair. If this was the case, you would need to review the whole agreement and potentially start again. Some examples of where this would be the case would be losing your job, receiving an inheritance or wanting to get divorced sooner if you meet someone else.
- The Court will always look at your current situation, not the situation at date of your Separation Agreement. If the agreement still seems a fair and reasonable division of assets, the Judge will probably approve it. But if the Judge does not think it is fair then the agreement can be reopened. This would mean negotiating your position again and trying to come to a revised agreement.
- A Separation Agreement cannot deal with pensions. When a couple gets divorced, particularly after a long marriage, pensions can be one of the most valued assets in the matrimonial finances. Therefore, any settlement involving a Pension Sharing Order will have to be dealt with when the matter comes to the Court in the financial proceedings (either by consent order or court proceedings).
A Separation Agreement can be useful to show that you and your former partner have split and allow you to agree on the financial settlement, but you should understand and address any potential pitfalls. For the Court to take it seriously, such an agreement will need both of you to have legal advice and for the assets of the marriage dealt with under its terms to be defined and agreed meaning there is a degree of financial disclosure required.
Judicial Separation
This is an unusual application, but it allows the Court to do everything apart from dissolving your marriage. The Court can still deal with the financial aspects of your separation, except for any pensions. Any Court Order dealing with pensions can only ever be implemented after the dissolution of a marriage and the Decree Absolute or Final Order has been issued.
A judicial separation will feel the same as being divorced, but with your marriage still being legal. You can make the exact same financial orders as you can during a divorce, except in relation to pensions. It also means that your ex-partner will not be able to benefit from a new Will that is made, unless it specifically states otherwise.
You should note that a Judicial Separation will not allow you to re-marry. You will be legally separated but that is all. If you later meet someone and you would like to marry, you will need to apply for a divorce and financial order as normal.
Judicial Separations are rarely used, but most commonly used by those whose religious views prohibit divorce. If, for whatever reason, you feel unable to divorce, a judicial separation may be the best course of action.
Annulment
If your marriage isn’t legally binding or valid, then you can ask the Court for an annulment. Typically, you can apply for an annulment within the first year of marriage. If there’s a delay beyond this, you may be asked to explain the reason for the delay.
There are some exceptions to this time limit, but you’ll have to show why you weren’t able to apply beforehand. If you’ve gone beyond the year time frame, give us a call to discuss your situation. We’ll be able to advise on whether or not an annulment can happen for you and if not what’s the best legal option for you.
To be eligible for an annulment, you will need to show that the marriage was never legally valid or that it was legally valid, but something has made it voidable.
There can be many reasons why your marriage was never legally valid, including:
- You, or your partner, were under the age of 18 at the time of the ceremony
- You, or your partner, were under the age of 16 if the ceremony took place before 27th February 2023
- You, or your partner, was already married
If the Court determines that your marriage was never legally valid, this means that it never existed, and you will continue living your life as if the ceremony never happened.
However, if you wish to declare that your marriage is now voidable, you can do so for a number of reasons, including:
- The marriage wasn’t consummated (you haven’t had sexual intercourse since the wedding)
- You didn’t give consent to the marriage, or you were forced into it
- Your partner was pregnant by someone else at the time of the wedding
If you believe that your marriage can be deemed as void and you have good grounds for annulment, please contact us today. Our Divorce and Separation Solicitors can offer advice on whether or not you qualify for an annulment.
For both options evidence will need to be provide to the court to support the reason you are relying on.
Couples Counselling
It may be worth considering whether or not the marriage has completely broken down and if there’s any chance of a reconciliation.
If you’re having problems within your marriage but you don’t want to commit to a divorce just yet, there may be an underlying reason for this. Couples counselling may allow you to both attempt to repair your relationship and save your marriage.
Sometimes hearing an outside perspective on what’s happened will allow you to objectively assess your relationship and start work on fixing it. It may also be a good chance for both of you to speak openly in a safe space on things that you feel otherwise unable to.
This is a solution for any couple who would like to explore all the available options before proceeding with a divorce. Of course, if after couples counselling you feel that your marriage is irreparable, then divorce or a legal separation is probably the best option to take.
Do Nothing
Your final option is to do nothing. However, this does not change your situation at all, and you should consider that your rights as a married person will continue until you legally sever those ties. For this reason, this isn’t an option that we would recommend to anyone.
Ending your marriage will never be an easy decision to make but if you’ve decided that you don’t want to be in your marriage any more, you probably should consider divorce proceedings and the division of your finances as soon as practically possible.
Whatever else you do, make a Will and do all you can to separate yourself financially from your ex. This includes changing death in service benefits and insurance policy nominations and severing the tenancy on your home if you own it
If you want help and divorce advice about your current situation and the options above, talk to one of our Divorce Solicitors who can give you details about the positives and negatives of each option.
Why Choose Simpson Millar
If you’re unsure about how to proceed with your separation, our Family Law and Divorce Solicitors are here to help guide you.
In an assessment call, we’ll listen to your case and how you feel about potentially divorcing or legally separating.
Our goal is to help you understand your options and to move forward as quickly as possible. We’ll aim to assist you with financial settlements, childcare arrangements, and anything else that is relative to your case, to achieve the best possible outcome.
Our team are Law Society Accredited, and we are all members of Resolution, which is a national organisation that is committed to non-confrontational divorce and separation.
We work on fixed fees and hourly rates, as well as our Separating Together service, and we’ll explain our costs upfront, so you always know what to expect.
For an initial call to get some helpful advice, call our Family Law Solicitors today.
