what if divorce is not an option?

What happens when divorce is not an option?

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Walker Family Law
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What happens when divorce is not an option?

What can you do if your marriage has broken down, but divorce is not an option? There are a number of reasons why it may not be an option: you have not been married for one year (divorce is not allowed before that), you may not have grounds for a divorce (although under our present law this is unlikely), or you may simply have a religious objection to divorce.

Well, if you need to get a court to sort things out, then there are several other options still available.


Judicial separationWhat happens when divorce is not an option

The first option to discuss is judicial separation. Judicial separation is a procedure similar to divorce, save that it does not dissolve the marriage. Instead, the court grants a decree of judicial separation, with the effect that “it shall no longer be obligatory for the petitioner to cohabit with the respondent.”

Of course, this has no practical meaning in modern society, so why apply for a judicial separation?

Well, the primary purpose of obtaining a decree of judicial separation is to utilise the court’s powers to grant financial remedies, in a similar way to divorce proceedings (as we will see below, the court’s powers to grant financial relief outside of divorce or judicial separation are somewhat limited). Accordingly, it is possible, for example, to ask the court to adjust the ownership of matrimonial property (i.e. transferring property, or a share of it, from one party to the other), following the judicial separation decree.

There is, however, one important limitation on the court’s financial powers following a decree of judicial separation. It cannot make pension sharing orders, sharing one party’s pension rights with the other party. Pension sharing orders can only be made when the marriage ends.

As stated, judicial separation procedure is similar to divorce. This means that you will still need to prove that the other party has committed adultery, that they have behaved unreasonable, two years desertion, two years separation with their consent, or five years separation. Thus, judicial separation is not available to anyone who does not have grounds for a divorce.


Child arrangementswoman reading with child, divorce

If you and your spouse are separating then you will need to sort out arrangements for any dependent children, i.e. how much time they should spend with each parent.

You should try to sort out these arrangements by agreement with the other parent. However, if you are unable to do so then it is perfectly possible to apply to the family court for a child arrangements order, without there being any divorce proceedings.


Child maintenance

Similarly, you should try to sort out child maintenance arrangements by agreement with the other parent.

If you are unable to do so, or if the other parent does not pay, then you can apply to the Child Maintenance Service for a child maintenance assessment. Again, this can be done without any divorce proceedings taking place.


Other financial arrangements

This is where things can get a little tricky (if you do not apply for a judicial separation), because, as we mentioned above, the powers of the court to make financial orders where there is no divorce or judicial separation are much more limited.

It is possible, although quite rare, for the court to order one spouse to pay maintenance or a lump sum to the other, even if there are no divorce or judicial separation proceedings. However, the court cannot adjust ownership of property, or make pension sharing orders.

Where there is a dependent child, the court can make certain financial provision orders for the benefit of the child, and there are also some other limited ways that the court can deal with property outside of divorce or judicial separation. However, these are quite complex areas of law, and are beyond the scope of this article.


Further information

The above of course is just a basic outline of the law. If you would like more detailed advice in relation to your particular situation, we can help. We have a free online system providing information on a range of family matters, which you can find here.