28th August, 2012
5 Things to Consider on a Breakdown of a Marriage or Civil Partnership
Experiencing a breakdown of a marriage or civil partnership can be difficult both emotionally and financially. Here are 5 things you may want to consider if you are experiencing a breakdown of a marriage or civil partnership:
1. There is only one ground on which married couples can divorce or civil partners can dissolve their civil partnership. Married couples can only divorce or civil partners can only dissolve their civil partnership (subject to having obtained the requisite duration of marriage or civil partnership of one year from the date of marriage or civil partnership) on the ground that it has irretrievably broken down. The petitioner (the person who issues the divorce proceedings) must satisfy the court of this ground by proving one or more of the following five facts:
1.1 Adultery and intolerability. There are two parts which need to be proved to establish to this fact. The first is adultery and the second is that the petitioner has to show that they found it intolerable to live with the respondent (the spouse of the petitioner seeking a divorce) although this does not have to be linked to the adultery. Adultery is defined by case law as voluntary sexual intercourse between two persons of the opposite sex of which at least one of them must be married (but not to each other). This fact is not available for a petitioner aiming to dissolve a civil partnership.
1.2 Unreasonable behaviour. This fact is claimed when the petitioner believes that they cannot reasonably be expected to live with the respondent due to their behaviour. Examples of unreasonable behaviour could include physical violence and verbal abuse.
1.3 Desertion. To prove this fact, the respondent must have deserted the petitioner for a continuous period of at least 2 years.
1.4 2 years separation with consent. This fact is claimed when the parties have lived apart for a continuous period of at least 2 years and the respondent must consent to the divorce.
1.5 5 years separation. The parties must have lived apart for a continuous period of at least 5 years to be able to prove this fact but there is no need for the respondent to consent to the divorce.
2. There are alternatives to divorce or dissolution. Not all married couples or civil partners will want a divorce or dissolution instantly on the breakdown of a relationship. Some may wish to separate and resolve arrangements informally. Others may wish to have a more formal agreement called a separation agreement which essentially is a contract which will set out arrangements as to finances and children but does not need the court involvement. Another option is a decree of judicial separation (separation order for civil partners) which allows the court to resolves finances. Such a procedure does not bring to an end a marriage or civil partnership and so neither party can remarry or enter into another civil partnership.
3. Make a list of all joint and sole assets. When considering divorce, dissolution or separation, make a list of all joint and sole assets and debts and, if possible, obtain valuations and outstanding balances for them. Any financial issues between couples will have to be sorted out with a view to reaching a fair and reasonable financial agreement. Separating couples should consider about whether the former matrimonial home needs to be sold or not and, if not, who is going to live there and how the mortgage is going to be paid.
4. Consider children of the family/relationship. Think about with whom any children of the family/relationship are to live, what level of contact the other party should have with them and what level of maintenance payments should be made for them.
5. There are various alternative methods of resolving disputes available. Rather than going through court, there are various alternative methods of resolving disputes such as finances and contact with children. One method is mediation in which an impartial mediator assists parties to identify their issues and reach agreement. Collaborative law is another method. The collaborative law process involves a series of meetings in which the parties and their respective solicitors aim to resolve issues resulting such as finances and contact with the children without going to court. The process essentially requires the parties and their solicitors to work as a team to reach a settlement.
If you or anyone you know is considering divorce, dissolution or separation, or have any questions on the above content, please contact Richard Barge on 01244 405443 or at [email protected].
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