No relationship is perfect and most have their ‘tough times’ as well as ‘happy times’.

No relationship is perfect and most have their ‘tough times’ as well as ‘happy times’. Unfortunately, in some relationships, the “tough times” get tougher and the “happy times” become less frequent. The question may arise – is this relationship working or has it broken down? This realisation can happen suddenly or gradually over time, it can be difficult to know when the time has come to make changes, these changes of course may include what you had previously thought of as ‘the unthinkable’ to start divorce proceedings.

This article is intended to help people who may be wondering whether to proceed with a divorce or separation. It is always a good idea to think things through carefully first, by taking a look at what to consider if you are contemplating a divorce and how you can prepare if you do decide to go ahead.

If you are considering speaking to a divorce lawyer, then you will doubtless have difficulties in your relationship.

However, divorce is only one option to consider.

You may believe that divorce is the only way forward and in many cases it is. But not in all cases. I encourage everyone I work with to think about other options before instructing me to initiate divorce proceedings.

Counselling

Before embarking on separation or issuing divorce proceedings, you may wish to attend some relationship counselling sessions to see if you are able to work out the difficulties in your marriage.

If you would like to pursue this option, I would suggest contacting Relate, the UK’s largest provider of relationship support. You can visit their website or telephone them on 0300 100 1234 to find out where your nearest centre is located. There are other support networks and councillors and I can provide information about them if you contact me directly. I have experience of working with counsellors to provide bespoke counselling.

 Informal or Formal Separation

You may wish to trial an informal separation, you and your spouse can agree the arrangements between yourselves. However, an informal separation is not appropriate if you wish to formalise any financial arrangements on separation.

If you wish to formalise your separation and agree financial arrangements on separation without involving the court, you can enter into a separation agreement. The separation agreement would confirm that you and your spouse will live apart and would set out the financial arrangements agreed between you and your spouse for the duration of your separation. A court order could be made in the agreed terms in any later divorce proceedings.

A separation agreement does not have the same finality as a court order made on divorce and either you or your spouse could make a subsequent application for financial orders to the court. However, if both you and your spouse receive independent legal advice about the terms of the separation agreement and make financial disclosure of your financial resources and any other relevant circumstances to one another, although the court is not bound by the financial arrangements in the separation agreement, the court is likely to uphold the terms of the agreement provided they are fair. The test for determining fairness was set down in a Supreme Court case called Radmacher v Granatino [2010].

Judicial Separation

Judicial separation is an alternative to divorce proceedings and the procedure is very similar. The main reason people choose judicial separation rather than divorce is if they do not wish to dissolve their marriage for religious reasons.

The outcome of judicial separation proceedings is a judicial separation order rather than a final (divorce) order dissolving the marriage, so the parties remain married. A court can make financial orders on judicial separation. Judicial separation is rare and usually the better option is to divorce.

Post-Nuptial Agreement

Another route to consider if you do not believe that your marriage is at an end, but you or your spouse are concerned with your financial security in the marriage, you may wish to consider entering into a post-nuptial agreement. Some couples find that their relationship is strengthened if the financially weaker party feels they have more clarity, financial security and control in the relationship.

A post-nuptial agreement can detail how finances are arranged between a couple during the marriage. It can also set out how a couple wish their assets to be divided between them if they later separate or divorce.

Post-nuptial agreements are not binding. This means that if parties to a post-nuptial agreement later divorce, the terms of the post-nuptial agreement cannot override the court’s broad discretion to decide how to redistribute their assets and income on an application for financial orders on divorce. However, when considering an application, the court must give appropriate weight to a post-nuptial agreement as a relevant circumstance of the case. The court is likely to uphold a post-nuptial agreement if it meets the fairness test set down in the Supreme Court case of Radmacher v Granatino [2010].

Criteria for Starting Divorce Proceedings

A couple must have been married for at least one year before divorce proceedings can be started. An application can be made by one spouse (a sole application) or by the couple together (a joint application).

There is only one ground for divorce, which is that the marriage has irretrievably broken down.

Divorce is an emotionally and legally significant time, but with the right support the process itself does not need to be contentious or confusing.

We have helped thousands of people with divorce or dissolution and offer a personal service specific to your needs with all the explanation and guidance necessary.