Alternatives to Divorce
When couples separate they may not wish to consider divorce but may still wish to formally record the separation and consider resolving financial matters or any matters in relation to their children.
If matters are agreed then the couple could have a Separation Agreement drawn up. If matter are not agreed then it possible for either party to apply to the Court an order under the Childrens Act, if there are any disputes in relation to the children, or a Judicial Separation.
Separation Agreement
Such an agreement shows the parties intention at the time it was drawn up. If the agreement includes reference to financial matters then when the parties get divorced they can ask the Court to approve the agreement reached and incorporate that into a Court Order or consider an alternative settlement. If either party wishes to ask the Court for an alternative settlement then the Court will have to take into account the Separation Agreement, although it is not bound by that.
The Court is likely to stand by the terms of the Separation as long as at the time the Agreement was drawn up :
- Each party made full and frank disclosure of their financial circumstances to each other
- There has been no significant change in either parties financial circumstances
- Each party had the opportunity to take their own independent legal advice
It is possible to incorporate any agreement reached in relation to children, such as arrangements for contact in a Separation Agreement, however these clauses would be treated differently to those in relation to financial matters if a Court was being asked to consider those.
Childrens Act
If an agreement cannot be reached in relation to arrangements involving the children, or either party wishes to amend the agreement as set out in the Separation Agreement, then either party can make an application to the Court under the Childrens Act. Such an application could be in relation to issues as to where the child is going to live or how much contact it is going to have with the other parent. The Court will make decisions based on what is in the best interest of the child.
Judicial Separation
If an agreement cannot be reached in relation to financial matters then it is possible for either party to apply for Judicial Separation. This is not divorce but involves a similar application to the Court. This application gives the court jurisdiction to consider financial matters if needed, which it would not have without divorce or judicial separation proceedings being issued. These proceedings are rare given that divorce proceedings would usually be issued instead.
Other Issues
When parties have separated there are other issues that need to be considered. As long as the parties remain married then their spouse will be their Next of Kin. If either party would rather their estate pass to someone other than their spouse then they need to consider making a Will to reflect that.
This is extremely important if there is property involved which is going to remain in joint names. When couples jointly own property they are more than likely ‘joint tenants’ which means there is a Right of Survivorship so if one party were to die their share would pass to the other party.
This can be prevented by either party ‘severing the joint tenancy’ which means that each persons share would pass as per the instructions in their Will rather than automatically to the other party if they were to pass away.
Nullity
It could be possible that when a couple marry the marriage is not valid. If a marriage were to be considered not valid then an application can be made to have the marriage ‘Annulled’. There are a number of reasons why a marriage could be annulled, for example :
if the person you married was already married to someone else;
if the marriage has not been consummated;
if one party was under 16 at the time of the marriage
if the parties have inter married (that is married a close relative)
if one party has a venereal disease a the time of the marriage and they were aware of this, although the other party was not
if the wife were pregnant with another person child at the time of the marriage and they were aware of this, but the other party was not
Unlike divorce, where you have to be married for 12 months before you can issue proceedings, a nullity petition can be issued at any time after the marriage. It must however be applied for within a reasonable period of time, in some cases this must be within 3 years.
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