Divorce & Separation
The breakdown of marriage via divorce & separation can be one of the most traumatic experiences for a person. It will raise all kinds of difficult questions and potential problems that will need resolving. We will help you answer those questions and guide you through both the practical and emotional problems you may face, however, complicated and overwhelming they may seem.
The undefended divorce & separation procedure itself is, in fact, a simple paper exercise, particularly where both husband and wife have mutually agreed that the marriage has irretrievably broken down. The spouse applying for the divorce (the petitioner) is only able to present a divorce petition to the court after having been married for at least 1 year. They must prove to the court that the marriage has irretrievably broken down by relying upon one of 5 facts:
1. Adultery by the other spouse (the respondent)
2. Unreasonable behaviour by the other spouse
3. Desertion for a period of 2 years or more by the other spouse
4. Separation for 2 years or more and the other spouse consents
5. Separation for 5 years or more
It is not unusual these days for families to travel extensively and relocate abroad. In such circumstances, when a relationship breaks down, it is essential that specialist advice is sought as to which country any divorce or family proceedings should be initiated in. There must be a careful and detailed analysis of the benefits and drawbacks of issuing in a particular country. The likely financial outcome in each particular country will often determine the country of choice, which may include consideration of whether there is a binding pre-nuptial or post-nuptial agreement in existence. Decisions about where children will live, with whom, and in which country may also need to be made which could involve child abduction issues or consideration of moving abroad with children.
A married couple may experience relationship difficulties but may not have reached the point of irretrievable breakdown. A reconciliation may be possible, and perhaps some form of marriage counselling or guidance will assist the couple. A period of separation may be the best way forward for the family, whether temporary or permanent. It is important that agreements are reached regarding the financial issues on separation as soon as possible and recorded in a formal separation agreement. It is also important that specialist legal advice is obtained before negotiating or entering into any separation agreement as in most cases the agreement will be upheld at the point of any future divorce.
A couple may feel that the marriage has irretrievably broken down, but they do not wish to proceed with divorce due to religious beliefs or for other reasons. In such circumstances, a Judicial Separation may be considered appropriate. A Judicial Separation involves proceedings similar to that of divorce, and specific financial applications can also be made to the court if an agreement cannot be reached.
An annulment is a legal declaration by the court that the marriage was not legally valid when entered into, or has become legally invalid subsequently. The grounds for annulment are very limited and are not always easy to prove, therefore it is essential that specialist family solicitors such as ourselves are instructed. Some examples of when an annulment may be appropriate are as follows:
- Mental incapacity
- One spouse is under 16 years old
- The couple not being fully male/female
- The couple are related
- Mistaken identity
- Non-consummation of the marriage
- Not conforming to the legal requirements of marriage
- If one spouse was pregnant or had a sexually transmitted disease at the time of marriage and the other was unaware of it