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What are my alternatives to divorce?
Making an appointment to see a family solicitor is not
automatically the first step to a divorce if you are experiencing
problems within your marriage. There are a number of different
options available for consideration.
Reconciliation
If you have not already been in contact with any marriage
guidance counselling service, such as Relate, we can provide
details if appropriate. Relate do not only deal with reconciliation
but are also prepared to help people in the process of getting
divorced come to terms with the divorce and make decisions
about the future.
Separation
You may already be living separately from your spouse
or be considering separation. If you do not wish to start
formal legal proceedings but are separated or about to separate
you can formalise financial arrangements and arrangements
for any children in the form of a Separation Agreement. This
is a contractual arrangement with your spouse. The terms of
the Agreement will depend upon whether it is intended to be
a short term or long term agreement. It is quite common for
spouses who do not want to file unreasonable behaviour petitions
and are waiting until they can divorce on the fact of two
years’ separation to enter into a Separation Agreement.
Such an Agreement also allows for a period for reflection.
One disadvantage of a Separation Agreement is that the Court
is not involved and so there is no outside sanction if, for
instance, either party is reluctant to give disclosure of
their financial position or no agreement can be reached. A
Separation Agreement cannot be as easily enforced as an Order
of the Court. Another disadvantage is that you are not divorced
and so if and when the time comes you will or may need to
return to solicitors to get a divorce even if it is on a straightforward
basis. Any financial agreement could also be reopened at that
stage. Although legal agreements made with advice and after
disclosure are usually upheld they are not watertight in the
same way as an agreement ratified - turmed into and order
or divorce. The position could also change between the Separation
Agreement and divorce which could have financial consequences.
In addition, you will need to get an Order dismissing both
parties’ claims. You cannot get an order providing for
a final dismissal of financial claims except in divorce proceedings.
Judicial Separation
A decree of Judicial Separation does not terminate the
marriage so at the end of the process you are not divorced.
Usually Judicial Separation proceedings are only considered
if there are pension considerations or religious or ethical
objections to divorce or if you have been married for less
than a year in which case divorce is not immediately available.
The grounds and procedure for applying for Judicial Separation
are virtually the same as for Divorce, which are set out in
detail below.
For further details of Charles Russell's other services for
families such as adoption, pre-nuptial arrangements, rights
of co-habitants, please contact David
Davidson or another member of the Family Group.
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