There is always the option of doing nothing at all, but this is not recommended. If your marriage has ended and you don't do anything to deal with it, then this will have repercussions later. For example, you cannot get remarried if your previous marriage still exists. If you don't resolve your financial claims against one another, then these will remain open indefinitely and your partner could make a claim against your assets in future.
If you believe that your relationship is ending, then you may first want to consider couples counselling or therapy. This may help to repair the relationship between you and your partner. Even if you both still agree that the relationship is over, couples counselling will start the process off on the right foot as you both engage in positive communication styles. It can continue throughout the divorce process to help both parties work through the emotions they are feeling together.
Judicial separation is the legal process of becoming separated which ends in a judicial separation order. This order has legal implications that an informal separation does not. Importantly, the court can make financial and children orders as if the parties were married. Also, if one of the parties dies intestate then their estate is dissolved as if their partner were dead (but note, wills continue to be effective after a judicial separation order).
Judicial separation may be appropriate in cases such as:
It's a recognised legal process similar to the divorce and dissolution process, but there are some differences. For example, there are different jurisdictional criteria depending on whether you are married or in a civil partnership, and the court cannot order a pension sharing order or clean break. It also may not be appropriate if you and your partner are intending to get divorced soon anyway, as this will lead to increased costs. You should seek advice from a family law expert if this is an option you wish to explore.
A separation agreement is a legal document which sets out the financial arrangements whilst a couple are getting separated and how their finances may be divided if they were to get divorced. You don't need to obtain a judicial separation order in order to have a separation agreement.
It may be appropriate in cases such as:
It's important to understand that if you and your partner have a separation agreement, it doesn't prevent the Family Court making a different order if a divorce is sought later and financial remedies are applied for.
There's a risk that the separation agreement is unravelled. The only way to ensure that an agreement isn't unravelled would be to apply for a divorce and convert the separation agreement into a court order which gets approved by the court.
In reality, it's likely that the court will attach great weight to a separation agreement or follow it in its entirety if, in the course of agreeing it, you and your partner both had legal advice, you both understood the terms and neither of you were under undue pressure. The agreement may also be set aside by the court if it leads to a manifestly unfair outcome or the parties’ situation has changed since it was drafting.
Separation agreements are most valuable as short-term solutions when parties are separating imminently, with the intention of converting them to a consent order soon. Otherwise, there is a risk that parties incur the cost of drafting the separation agreement and financial matters.
There are certain grounds on which a marriage can be annulled. If an application is successful, then the court will grant a nullity of marriage order. The court is still entitled to make financial orders to separate the parties’ finances when making the nullity of marriage order.
A void marriage is one that will be considered never to have been valid in the first place. The law sets out very specific circumstances where a marriage will be void including where a party was under the age of 18 at the time, the parties are too closely related and a party was already married to someone else at the time.
A voidable marriage, on the other hand, is one that is considered valid until the nullity of marriage order is pronounced. It's up to one of the parties to apply to void the marriage. Grounds for the application include lack of valid consent, non-consummation (this doesn’t apply to same sex marriages), a party having a mental disorder at the time of marriage, a party having a venereal disease in communicable form or is pregnant with someone else’s child at the time of marriage, or an interim gender recognition certificate post-marriage. The court may not annul a voidable marriage where the applicant knew they could apply to void the marriage but continued the relationship anyway.
Annulment is not a very common way to end a marriage. It requires specialist knowledge of the grounds for nullity, the application process and the applications that should be made alongside (such as for financial provision). If this is an option you are considering, you should speak to one of our experts for further advice and guidance.
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Every relationship and every relationship breakdown is different. If you feel that your marriage is coming to an end, it's always helpful to speak to a solicitor early on so that you can understand all your options before you choose a specific course of action. Some people wish to speak to a lawyer before they speak to their partner, others want to speak to a lawyer only after they know that they want to separate. The timing will depend on your specific circumstances.
There are only very limited grounds on which your partner can dispute your application for a judicial separation order. These are limited to challenging jurisdiction, challenging the actual validity of the marriage itself and proving that the marriage has already been legally dissolved. Otherwise, there are no grounds to dispute the making of the order. If you apply for a judicial separation (and none of the above applies), then the court must grant you a judicial separation order.
If you were part of a ceremony that was not a legal marriage ceremony, then this will be considered a non-qualifying ceremony or non-marriage. These cannot be annulled because there was no valid marriage in the first place.
These ceremonies may be religious or spiritual and be termed ‘marriage ceremonies’, but they are not legally recognised. If you and your partner were involved in this kind of ceremony, then you are not married. It's likely that cohabitation law would apply to determine the separation of your financial assets.
Once a final financial settlement has been reached, whether directly between you and your partner or through the courts, that would usually be the end of the matter. It will likely contain a clean break clause, preventing you from making any further claims against your partner’s assets.
However, if your partner did not disclose all of their assets when that settlement was reached, you may have grounds to re-open and re-negotiate the settlement. You would need to make an application to set aside the order. You would need to prove to the court that your partner did not give full and frank disclosure and that if they had, a different financial settlement would have been reached. If your application is successful, you could claim the costs associated with your application against your partner so they would need to pay your legal fees. There is also a risk that your partner could be held in contempt of court, which is punishable by committal.
If you did nothing when your marriage breaks down, then you will remain married to your partner. This prevents you from marrying in the future and it will mean that you are both still able to benefit from spousal rights that you may have (e.g. against one another’s pension).
If you don't do anything to determine how your finances are split on breakdown, then your financial claims will remain open against one another. If your relationship has broken down, it's important to consider how you want to deal with this and formalise any agreements reached so that you both have certainty in the future.
The short answer is no. Counselling and couples therapy is a voluntary process; you cannot force them to attend, and you cannot force them to remain in a relationship with you. If your partner no longer wishes to be married then they can begin the divorce or judicial separation process themselves as a sole applicant.
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