Separation

If you and your spouse do not wish to divorce you may decide to obtain a Decree of Judicial Separation instead. The court procedure is the same as divorce except that you remain married to your spouse. The court can make the same financial orders as it does in divorce proceedings.

Another alternative to divorce is to simply live separately from your spouse and deal with the divorce at a later date (usually two or five years later). In this instance, you should consider having a Separation Agreement formalising the financial arrangements you have made in respect of matters such as child and spousal maintenance, division of capital and property (including the matrimonial home) and care of the children.

The terms of the Separation Agreement will not override matrimonial law which means either you or your spouse can ask the court to deal with the issue of division of family assets as part of the divorce proceedings. The existence of the agreement will however be viewed by the court as “one of the factors” to be considered. The court is more likely to uphold the terms of the Separation Agreement if you both provide full and frank financial disclosure, obtain independent legal advice and there are no significant changes from the date you sign the agreement to the date of the divorce.

Another alternative to divorce is to obtain a Decree of Nullity. A Decree of Nullity may declare a marriage to be either void, in which case it is treated as never having existed at all, or voidable, in which case it will be treated as being valid until the Decree of Nullity is obtained.