Legal Advice on Divorce, Judicial Separation and Financial Settlements
The divorce, judicial separation and financial procedures are separate but linked processes.
The Divorce Procedure
No-Fault Divorce came into force on 6th April 2022
The Divorce, Dissolution and Separation Act 2020 reformed the divorce process to remove the concept of fault. The act was passed in June 2020 and came into force on 6 April 2022 making the following significant changes to Divorce law:
From 6 April 2022, the new legislation:
- Replaced the ‘five grounds’ and allows couples to divorce without assigning fault.
- Enabled anyone seeking a divorce or dissolution of a civil partnership, to petition without having to apportion blame on their spouse. Irretrievable breakdown of the marriage will remain in place as the sole ground for divorce which removes the need to make allegations about a spouse’s conduct and allow couples to focus on an amicable separation rather than allocating blame.
- Removed the possibility of contesting the divorce as the court will take the statement of irretrievable breakdown as concrete evidence that the marriage has broken down.
- Introduced an option for a joint application. Although individuals may still apply individually, the new law introduces the option for couples to make a joint application if they mutually agree that the relationship has broken down. The introduction of this option aims to reduce the chances of unnecessary conflict being created.
- Made sure language is in plain English, for example, the ‘Petitioner’ is now referred to as the ‘Applicant’, ‘Decree Nisi’ is now referred to as ‘Conditional Order’, and ‘Decree Absolute’ is now referred to as ‘Final Order’.
- Introduced new time limits in that although the no fault divorce process will remove delays in terms of minimum separation periods, a new minimum 20-week period between the start of proceedings and pronouncement of ‘Conditional Order’ has been introduced. The 6-week period between Conditional Order and Final Order has been retained which means that an amicable divorce will take at least six months to complete.
The following orders can be applied for by either party:
- Spousal maintenance
- Adjustment of property ownership (eg transfer of a house from joint ownership to the sole ownership of one or other of the parties)
- Lump sums (capital payments)
- Pension sharing
- Maintenance for children
- School fees
All assets whether in sole or joint names are considered for division.
Both parties are required to make full and frank financial disclosure.
It is important to remember that if a financial agreement is not recorded and approved by the court at the time of the divorce, both parties’ financial claims will remain open indefinitely. If you remarry or form a civil partnership you will no longer be able to apply for financial provision in respect of your previous marriage or civil partnership. However, your former husband’s/wife’s claims will remain open against you. It is therefore important that you deal with financial matters sooner rather than later and at the same time as the divorce whenever possible.
The Judicial Separation Procedure
Judicial separation is not a divorce or dissolution of a civil partnership. The parties remain married but all the normal marital obligations come to an end.
The same facts that are required to justify a divorce or dissolution of a civil partnership are required for judicial separation but it is not necessary to prove that the relationship has irretrievably broken down. The proceedings conclude with the granting of a Decree of Judicial Separation which provides that:
- The parties are no longer obliged to live together
- The parties are able to make the same applications for financial provision as with a divorce or dissolution of a civil partnership, except pension sharing orders
- Spouses no longer take any benefits under each other’s wills unless new wills are made specifically making them beneficiaries
Judicial separation is sometimes considered when:
- One of the parties to the marriage or civil partnership is opposed to divorce or dissolution, often for religious reasons
- To formalise a separation within the first year of marriage or civil partnership during which period divorce or dissolution is not available
For advice please contact
Urmilla Seenath on 01189 559616