Legally separating from your partner is an option that many individuals aren’t familiar with. When the end goal is a divorce — is there any point? We look at separation and how it can actually speed up the process of a divorce, leaving you paying less and allowing you to move on with your life.
If you’ve been living apart from your ex-partner for some time and have been left asking yourself “how soon can I divorce after separation?”, you’re in the right place. Unfortunately, the answer isn’t always clear. In this post, we talk you through the difference between separation and legal separation, and how having a Separation Agreement in place can actually help you get divorced more quickly and easily later on.
Separation and Legal Separation: Is There a Difference?
Before we delve into separation agreements and the process of divorce, it’s important to first understand the difference between separation and legal separation. Any individual might separate from their spouse — if you and your ex have mutually agreed that you are no longer a couple, you’ll probably inform your friends and family that you’re now “separated”. If you remain on good terms with your spouse, you’ve likely already decided arrangements between you without involving a solicitor.
Consider legal separation as a step between mutual separation and a legally binding divorce. Getting a legal separation isn’t necessary, but it does allow you to agree on issues that could cause a dispute if you do get divorced later down the line, including children, assets or finances. Whether you’re only separating on a trial basis or simply want to get divorced as quickly and cheaply as possible later on down the track opting to legally separate does have its benefits.
A Separation Agreement: What Is It?
When you file for legal separation, you and your ex-partner will draw up a document called a Separation Agreement. A separation agreement is a document that outlines you and your ex-partner’s obligations to each other, any children and your marital assets A separation agreement might specify who contributes to the mortgage and how much is paid, who your children will live with during the separation and how much maintenance, if any, is payable by you or your spouse. While it’s important to note that a separation agreement isn’t legally binding, it can be presented to the court as evidence to speed up the financial process on divorce and the terms in the agreement can be made legal after a divorce if both parties agree to them.
Filing for a Divorce: The Process
To get a divorce, you must file a petition in court and establish the grounds for wanting to dissolve the marriage. It’s important to bear in mind that you and your spouse must be married for a minimum of one year before filing for a divorce.
Divorce proceedings are largely administrative (although this issue is currently before the Supreme Court) and a divorce will be upheld if the petitioner (the person initiating the divorce) can establish one or more of the following:
- Your spouse has committed adultery (this also extends to sexual relationships taking place after separation)
- Your spouse has behaved unreasonably, so much so that you cannot be expected to remain with them
- You have been deserted by your spouse for a period of two years or more (this is rarely used as grounds for divorce)
- You and your spouse have separated and been living apart for two years (your ex-partner must consent to the divorce)
- You and your spouse have lived apart for five or more years (in this case, you can get divorced without the presence or consent of your spouse)
Of course, you could just opt to file for divorce straight away. However, legally separating first not only allows you to evaluate your marriage and make sure it’s what you and your spouse really want, but it can also make it a lot easier to prove the reason you began proceedings.
How a Separation Agreement Can Help
Under some grounds for divorce, both you and your partner must prove your consent. A separation agreement puts that consent into writing, along with the date of your separation, which can be easily referred to by the court. If, for example, you and your spouse have been living apart for three years and want to get a divorce, your agreement will support this. These agreements not only formally record that you have separated, but also can set out the agreed financial arrangements following separation.
As we’ve stated, separation agreements are not legally binding and they can be overturned by the court when the time comes to do a final financial order. However, when drawn up correctly, they are persuasive and rarely disputed. Even when a marriage ends amicably, that is, without long and drawn-out disputes over finances, children or splitting assets, it’s vital to consult a family law solicitor when drawing up an agreement. If, for whatever reason, your ex-partner decides to dispute the grounds of divorce, having a separation agreement is a valid piece of evidence that the court can refer to.
Separation agreements can also be beneficial for newly-married couples. Sometimes, you’ll get married and it just doesn’t work out. There’s no chance of you reconciling the relationship, and you no longer want to live or be with your partner. Unfortunately, you won’t be able to file for a divorce until you’ve been married for at least 12 months. Getting legally separated allows you to agree with your spouse how assets and responsibilities should be split until the date rolls around when you can file for divorce proper.
Securing an Order of Consent
Getting a divorce and final financial and child arrangements agreement can be a lengthy process, especially if you need to agree with your spouse who is responsible for the marital home or how the care of your children will be shared. The process can last anywhere between four and six months, though it may take longer if you have to await a decision on other issues from the court. By legally separating and ironing out these details in a separation agreement, the divorce process can be much quicker and less hassle, allowing you to save on both legal fees and avoidable stress. It’s likely that the arrangements in a separation agreement are already agreeable to both parties — after all, you’ve been adhering to them during the course of your separation. However, if you want your agreement to be legally binding for added protection by the court, you can secure an order of consent. A Consent Order is necessary to dismiss both your claims against each other so there are no nasty surprises in the future.
An order of consent is a legally binding document that confirms you and your ex-partners agreement over particular issues. This can prevent disputes over child arrangements by determining who your children will live with when they see their other parent and what other types of other arrangements may be put in place (for example, phone calls). A consent order can also be used to determine how you divide assets such as money, property, savings and investments.
A consent order can be drafted by an experienced divorce solicitor, after which it needs to be submitted to court. Your solicitor will be able to help you with this. Obtaining a consent order also allows both parties to avoid attending court hearings — providing that you can both agree.
If you and your spouse are separated and you’ve been asking yourself “how soon can I divorce after separation?”, you should now have your answer. Divorce doesn’t have to be a costly and drawn-out legal affair — our family law solicitors can advise you on your separation or divorce and help you get the resolution you want. Contact us today for your free, no obligation consultation.