On occasion clients come to me asking if they need to get divorced or if there are alternatives to divorce. When this happens, I find myself bombarding the client with the other options. Rarely is divorce ‘needed’ but it’s often wanted.
As all the information is new to my prospective client, it can be a lot for them to take in, but to be frank, no, divorce isn’t the only option – but it may be the most suitable. On Monday I had this exact scenario with a client called Jill.
Jill’s marriage with husband Jack had reached breaking point. Matters had escalated since the government issued the nationwide lockdown and furloughed everyone who was lucky enough not to be made redundant. They had been cooped up together and arguing. There hadn’t been any affairs or abuse involved; they had simply grown apart and Jill was the first to think she’d had enough. Jill called up our firm and we spoke about her marriage, the children and her alternatives to divorce.
Regardless of whether it’s the husband or wife who comes to me, there are a number of common thoughts that clients have when thinking about divorce. These include:
- Whether or not they have ‘failed’ as a husband or wife, due to the breakdown of the marriage and the commitments they made
- The impact of divorce on their children, and the effects it will have on them growing up
- Whether they will be able to maintain their finances and lifestyle
- A lack of sex life and what they’re going to do after the divorce has been finalised and they are ‘free’
- Loneliness if they have been especially dependent on their spouse
I’m a solicitor, not a psychologist, but I think it’s important to understand the context of a marriage-in-trouble to help clients understand what else they can do and so I can properly explain their options to them. Sometimes it’s simply better to work on the relationship to avoid the alternatives.
After hearing Jill’s story and discussing the options, I wrote to Jill outlining her options so she could consider what she wanted to do before issuing divorce proceedings.
These are the options Jill and I discussed.
Counselling as an Alternative to Divorce
The most common alternative to divorce, especially in the earlier stages of a breakdown, is marriage counselling. Most clients turn to divorce as a last resort or as a shock tactic in an attempt to demonstrate to their spouse the seriousness of the breakdown in relationship, but this can backfire.
Jill’s marriage seemed to have broken down due to longstanding differences in opinion with her husband and her uncertainty on whether divorce was the right way forward made me think she may not have considered all her existing options. I advised Jill that she might wish to attend relationship counselling sessions to see if she is able to work out the difficulties with Jack and in her marriage generally prior to divorce.
I referred Jill to Relate (relate.org.uk, contactable on 0300 100 1234), the UK’s largest provider of relationship support, so she could try to pinpoint the cause of the issues in their marriage and have the option to work on them.
Counselling isn’t suitable for everyone, but where there’s an element of doubt or regret over the breakdown in marriage, this is usually the first thing I recommend.
Informal Separation as an Alternative to Divorce
Another option we discussed was the possibility of a ‘trial divorce’ in the guise of an informal separation. I explained to Jill that she and Jack could agree an informal trial separation if they so wished. However, should they still choose to divorce or formally separate after this, they would still need to go through the formal processes to divide finances and child arrangements.
Such trial separations can be helpful for couples like Jill to evaluate whether they truly would prefer life without their partner. For some, it can be an emotional period – for better or for worse. But ultimately a trial separation is aimed at getting finality over whether or not a divorce is required.
Finances and children are always contentious issues, and I explained to Jill that she and Jack would need to come to an informal arrangement over these. These arrangements wouldn’t, however, be enforceable by any court, as they are informal.
Due to this, I would always advise that informal separation is on a short term basis to prevent other issues arising.
In order to formalise finances and child arrangements, Jill and Jack would need to go through a formal separation.
Either Jill or Jack could make a later application for financial orders to the court. However, if both received legal advice about the terms of the separation agreement and their financial positions were disclosed to each other, the court would be highly likely to uphold the terms of the original separation agreement despite not being bound by them.
Judicial Separation as an Alternative to Divorce
Judicial or formal separation is an alternative to divorce proceedings. The procedure is vastly the same as divorce, however the outcome is that you both remain married but come to a formal, legally enforceable agreement over the division of finances and child arrangements. Like divorce, to get a decree for judicial separation, Jill would need to be able to demonstrate grounds for separation, namely:
- Unreasonable behaviour
- 2 years separation by consent
- 5 years separation without consent
The thing that surprised Jill most was that judicial separation leaves you both married and to formally end the marriage, you would still need to go through divorce procedures. However, if you choose to formally separate, you can still opt to create formal financial orders and child arrangements, just as you would with divorce.
You might be asking yourself why anyone would choose judicial separation – Jill certainly asked me this. To be honest, it’s quite rare for me to deal with judicial separation. The main reason people choose separation rather than divorce is on religious grounds where to divorce would be seen as taboo.
The last alternative to divorce Jill and I discussed were post-nuptial agreements. If finances are causing a rift, post-nuptial agreements can provide extra security to the financially ‘weaker’ spouse. Sometimes this can balance the tables enough for the marriage to prosper, but only if finances are truly the issue at hand.
A post-nuptial agreement would detail how finances are arranged between Jill and Jack during the rest of the marriage. It can also set out how Jill and Jack wish their assets to be divided between them if they later separate or divorce.
I advised Jill, however, that post-nuptial agreements are not binding on the courts. This means that if Jill and Jack later divorce, the terms of the post-nuptial agreements would not override the court’s broad power to decide how to distribute their assets and income.
Instead, when considering an application to settle divorce finances, the court must give appropriate weight to a post-nuptial agreement in context of the marriage. A post-nuptial agreement is likely to be upheld if it meets the fairness test set down by the Supreme Court in the case of Radmacher v Granatino .
This option wasn’t suitable for Jill as her differences with Jack extended beyond simple finances.
Contact our Divorce Solicitors in Brighton and Hove Now
If, like Jill, you need a divorce solicitor in Brighton and Hove, then click here to contact us now or call 24 hours a day, 7 days a week on 01273 726951 to speak to one of our divorce solicitors in Brighton and Hove. We are also able to give independent legal advice on any financial remedy consent orders.
And if you were wondering, ultimately Jill decided her best way forward was to go ahead with divorce. But at least she, and hopefully now you, understand all the options at your disposal when considering ending a marriage.