What is divorce?
Do you know
what it really means? Divorce is the legal dissolution of your
marriage. Once a divorce has taken place you are no longer legally
married to your husband or wife (spouse). It's a big step to take, both
emotionally and financially, but you are not the first, and you
certainly won't be the last.
What about annulment?
Annulment
is where a court decides that your marriage has never legitimately
taken place in the first place. This is a very rare occurrence indeed.
For the majority of people they simply get divorced.
What are the grounds for divorce?
There
is only one ground for divorce, and that is that the marriage has
broken down irretrievably. However, you have to prove one of five
things:
1. Adultery by your husband or wife.
2. Unreasonable behaviour by your husband or wife.
3. Desertion for two years.
4. Two years separation with agreement.
5. Living apart for five years.
Isn't there an alternative to divorce?
Of
course there is. Divorce should not be the first thing that you think
of when your relationship is breaking down (or is about to break down).
There are disadvantages in going to the courts too soon: First, unless
the divorce has been agreed between you and your spouse, it will add to
the tensions and personal animosity; secondly, discussions about the
children or about money are made more difficult; thirdly, going to
court starts off legal timetables which may clash with other plans; and
finally, legal costs start to rack up, and the question of who should
pay starts looming.
Obviously, if there is domestic violence, or
even the threat of it, then divorce proceedings may have to start
immediately. Otherwise, you may prefer to leave the issue of divorce to
one side and concentrate on immediate problems.
So what are the alternatives to going to the courts for a divorce?
1.Separation:
First,
there is no such thing as a legal separation. You are either living
together or you are not. The main differences between divorce and
separation is that you do not have a court to help you to sort out the
issues and move things along. Some cases need that, especially if your
spouse is not agreeing to give financial details. When the issues have
been sorted out, it is possible to have a separation agreement which
sets out in writing what has been agreed. A separation agreement will
usually contain the following provisions:
1. Whether or not a divorce is planned in the future
2. What the arrangements are for the children
3. What maintenance is going to be paid
4. What is going to happen to the house/flat.
2. Judicial Separation
This
can be viewed as a half way house that falls short of a divorce but
still involves the courts. It's important to remember that the marriage
still exists. For some, a judicial separation may be preferable because
of personal or religious views about ending the marriage.
The main
advantage of a judicial separation is that the court is involved and
can sort out issues about money and/or the children, e.g. if your
husband or wife is reluctant to hand over details of his or her
finances, it is possible to issue proceedings and force that to happen
through the courts. However, there are disadvantages. The same
procedures apply (or nearly) as in divorce, so you have to prove the
same facts, and there is likely to be the same type of costs as in
divorce. If you are the one who does not want the marriage to be ended
formally, there is a danger that these procedures might be amended or
changed into divorce proceedings by your spouse and this only leads to
further stress and disagreement.
So, what rights have I got?
The
answer to this question is different for virtually every person,
suffice it to say that the court's objective is to enable parties of a
failed marriage "wherever fairness allows" to go their separate ways.
In doing so the courts have a wide discretion over what they will and
will not do when faced with problems arising from a marriage breakdown.
It is only after careful consideration of each case that an answer can
be given.
What can be done to stop a residency order being taken out over my children?
When
marriages break down and bitterness creeps in husbands sometimes say
they want to take the children even though they have spent little time
with the kids prior to the divorce. This can either be a genuine belief
that the children will be better off with them or maybe just an ill
thought out proposal (husbands usually work full time) or a case of
hitting the woman where it hurts most.
Legal help for both parties
usually resolves the problem without going to court enabling parents to
prioritise what is best for the children and that usually means the
children staying with their mother.
Why won't the court take my spouse's bad behaviour into account?
There
are two reasons why the court won't do so: the glib answer is that you
are going to a court of Law and not of morality and the other more
practical and pragmatic reason is that if the court had to sort out the
rights and wrongs of who did what during the marriage the case would
never end the divorcing couples costs would escalate without it serving
any purpose.
Why is divorce so expensive?
The cost of
not paying for advice at a very traumatic time can be even more
expensive both emotionally and financially. Sure you can ask your
friend what to do and there will be no end of people willing to give
well-meaning advice, but, in this area of life more than anything else
"You get what you pay for". Sometimes the money spent can prevent the
breakdown of a divorce turning into a disaster which takes years, if
ever, to get over.
Conclusion – avoiding the pitfalls.
The divorces that cause the most ill feeling are usually those based on unreasonable behaviour or adultery.
Statements
about the other spouse's behaviour can often be the final straw, and
where children are involved their future well-being is at stake - if
you can no longer talk it is your children who lose out.
So here are some guidelines on to how to avoid some of the pitfalls -
1.
Don't fire in a petition for divorce in the heat of the moment - it may
make you feel better briefly but there will probably be a backlash,
making it more not less difficult to sort out the real issues;
2. If
possible agree to postpone issuing proceedings. This can be done
through solicitors or if things are too difficult a mediator can be
used;
3. When the time is right, discuss who should be the
Petitioner and agree the content of the Petition before it is sent to
court.
4. Keep the children and their welfare at the top of the
agenda - send a copy of the Statement of Arrangements to your spouse so
that these can be discussed and agreed beforehand;
5. Where the
divorce is based on adultery, think twice before naming the third party
as Co-respondent - this will add to the costs and certainly cause ill
feeling - however justified it may feel initially; it may also signal
to the court that the Petitioner is more interested in satisfying his
or her feelings than in sorting matters out constructively.
