Alternatives to Divorce Proceedings

In circumstances where either a divorce is not available to either party (i.e. where they are not able to rely on one of the five “facts” referred to in our previous blog to prove that the marriage has broken down irretrievably) or both parties do not feel that they wish to legally end the marriage, there are a number of alternatives available.  They include:-

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a)    Judicial separation proceedings

The main distinction between divorce proceedings and a decree of judicial separation is that the latter does not legally dissolve the marriage but does give the Court the ability to deal with issues concerning financial matters.

The basis for a judicial separation decree is the same as those for divorce (i.e. the facts A – E detailed in our previous blog) but there is of course no requirement for the petitioning party to assert that the marriage has broken down irretrievably.

Generally a decree of judicial separation is pursued in limited circumstances, for example if you have an objection to divorce (i.e. on religious grounds) or you are near to retirement and the legal dissolution of the marriage will adversely affect your rights to a widow or widower’s pension.

In these circumstances we can give you further details.

b)    Separation agreement

This can be used as an alternative to immediate Court proceedings.

It is particularly appropriate where the circumstances are such that neither party can commence divorce proceedings, i.e. none of the facts necessary for a divorce apply, or they do not wish to divorce immediately.

The terms of a separation agreement are contained within a deed or contract between you and your spouse which generally deals with arrangements including financial matters, whilst both parties agree to live separately.

The extent to which a separation agreement is an option will depend upon the level of agreement between you and your spouse, and whether the parties are seeking to divide their pensions which can only be achieved by way of a Court order (either by consent or following contested proceedings) and not by agreement.  It will also be necessary for the parties to comply with various requirements before the agreement is finalised, including the disclosure of their respective assets and each party obtaining independent legal advice as to the contents and effects of the proposed agreement.

We hope that you have found this and our previous post useful, but if you would like to know more, to continue to follow our weekly post or have any urgent need then please contact Sara Fildes via email on sarafildes@owenkenny.co.uk or call her on 01243 790532.