Separating from your spouse – What are your options?
Separating from your spouse is not an easy decision to make, but if you are in a relationship which no longer makes you happy, and you have tried to resolve issues between each other without success, then a period of separation can give you both some valuable time and space to decide if you can, and want, to make your partnership work, or if a permanent separation is best solution for you, your spouse and your children.
The legal system and the options available if you are going through separation and divorce can seem confusing and often overwhelming so to help you gain an understanding on the options available to you, your legal entitlements and how to start the process, it is advisable to take some professional advice. You may also benefit from seeking extra support from friends, family members, work colleagues or a relationship counsellor who will help you through this emotional time of conflict and uncertainty.
Taking your first steps towards separation
1. Seek Professional Advice – Although you are likely to be given lots of good advice from well-meaning friends and family, you will also need to gain perspective on the legal implications of your separation. Contact a family law solicitor who is a member of Resolution. Solicitors, family consultants, therapists and financial advisors can be members of Resolution. As a member, professionals are required to demonstrate their commitment to helping couples separate with minimal conflict whilst putting the best interests of the children first.
2. Check Eligibility for Legal Aid – you may qualify for legal aid. A Resolution Member will be able to find out if you are eligible. You can also check if you qualify for legal aid by going online to the Ministry of Justice calculator at http://www.gov.uk/check-legal-aid
3. Talk to your children – your children need to feel loved and secure and the way you talk to them about the separation will affect how they react and adapt to the change. Finding the right time to talk to your children, explaining your feelings, not arguing with your partner in front of them and giving them reassurance that you will still both love them no matter what will make the process, and the consequences, a little less painful for all concerned.
Finding the best options for you
Once you have sought advice from a legal professional, you will have a good understanding on which options are best suited to your personal situation. Most couples prefer to settle matters out of Court if possible but achieving an amicable solution out of Court does depend on the circumstances surrounding the split. For example, if you are separating a result of domestic violence or adultery then clearly an amicable solution out of Court may not be achievable.
If your split is relatively amicable, the most cost-effective way of coming to an agreement on finances and access/responsibilities for children will be to make an informal agreement between yourselves.
This agreement is not legally binding or enforceable, but can help you both to set out rules and work out child maintenance payments. It is however vital that whatever you agree is written down so you are both clear on what is expected of you.
It is best to review this agreement after a set period of time. If you find that it isn’t working for both parties, then you may need to consider a more formal and legally binding arrangement.
A separation agreement does not end your financial claims against each other, this can only be done by way of a financial order, which is approved and sealed by the Court. The Court can only approve this document once divorce proceedings are in place.
Mediation is a cost effective and practical option and facilitates discussions between you and your partner to guide you towards a practical solution.
If you are looking to agree arrangements for your children or finances out of Court, then you will be required to attend a Mediation Information Session (MIAM) unless you qualify for exemption (such as for those circumstance mentioned above).
Once you both agree to mediation, you can make an appointment to individually meet the mediator, then you will be required to attend a joint session.
Once you have reached a solution, the mediator will prepare a detailed summary of the outcome which can be made into a legally binding agreement or Court Order. If your mediation involves financial matters, you will also receive an Open Financial Statement.
Following mediation you will be encouraged to seek independent legal advice from a solicitor before formalising any binding legal agreement.
Collaborative law allows you both to resolve your disputes face-to-face, each having your own specially trained collaborative lawyer present at each meeting to provide support and legal advice as you go through the process.
This, like Mediation, is a process which can be conducted outside of Court, but you will both need to sign a binding agreement that commits you to not going to Court to resolve issues. The benefit of using the Collaborative process is that communication is open so you can hear what legal advice your partner is receiving.
The binding agreement does give you a powerful incentive to find a shared solution and it often delivers a more satisfactory outcome for both parties because it is designed by themselves rather than dictated to by the Court.
If Collaborative Law does not succeed, then you can still make an application to Court, but you are not permitted to do so with the representation of the solicitor who advised you throughout the collaborative process. It is therefore extremely costly if Collaborative Law breaks down.
Family Arbitration Process
The Family Arbitration process may be a good option if you need to reach decisions on finances or property but your relationship has broken down to such an extent that you can’t reach a solution between yourselves.
Arbitration is a private Court process. The Arbitrator is appointed by both parties to act as the Judge and will undertake the same role as a Judge at the various appointments which would take place at Court.
This is a process which can be conducted outside of Court. It will still follow the Court process and various appointments, which will end in a Final Hearing, if an agreement cannot be reached beforehand. At a Final Hearing the Arbitrator will hear evidence from both parties and then give a ruling known as an Award which must be accepted by the parties.
Going to Court
This could be your final option because you have not managed to achieve a resolution using the above processes due to total communication breakdown, or it could be the right option for your circumstances from the outset.
Sometimes an agreement can be made before the case reaches the Final Hearing, in which case the court will issue a Consent Order that requires final approval from the Judge. If, however, you can’t make a final agreement the Judge will make the binding decision on what he or she thinks is fair.