Will 2019 be the year of the amicable break-up?

He chose legal separation rather than divorce (in the US), wanting to ensure that his wife continues to benefit from his health insurance and in seeking to approach the breakdown of the marriage in a way that would be “mutually beneficial” for their family. 

Although rare in England and Wales, ‘legal separation’, or ‘judicial separation’, is a legal process through which the separation of spouses is formalised without, however, terminating the marriage – which is the effect of the far more common alternative of divorce. 

Legal separation can be an option where a divorce is objected to on religious grounds; or where pensions or other benefits would be extinguished on divorce; or within the first 12 months of marriage, during which divorce proceedings cannot be commenced.

There are ongoing calls for divorce law reform in favour of the arguably less inflammatory ‘no-fault-divorce’.

Parties can live separately but the marriage does not end, the parties are not free to remarry, and either party can, at any time, file for a divorce. 

When a marriage has completely broken down, the more usual course of action is therefore to commence divorce proceedings, which can still be amicably approached.

There is one ground for divorce in England and Wales, being that the marriage has irretrievably broken down. One of five facts must be proven, and unless the parties have been separated five years, or for two years and both consent to a divorce, the remaining three facts are fault-based (adultery, behaviour, desertion).

There are ongoing calls for divorce law reform in favour of the arguably less inflammatory ‘no-fault-divorce’, and the government is due to provide its response to the consultation by March 8 2019.

Arrangements over finances and children, dealt with separately from the divorce or legal separation itself, is often where acrimony, and occasionally ’gameplay’ during proceedings, can become most pronounced.

In a bid to help minimise conflict when separating, it has been compulsory for couples since April 2014 to consider mediation prior to making court applications on financial matters and where children are involved.

The figures are not encouraging though and in 2017 it was reported that only six in 10 couples were complying with the requirement, according to National Family Mediation.

It is widely accepted that exploring the possibility of early agreement on legal separation, or divorce and related matters is likely to contain costs, delays and unnecessary acrimony during what is an already challenging time for a separating couple.

This can be achieved via mediation, other means of alternative dispute resolution, or negotiations via solicitors without the need for court proceedings. Court proceedings may, on occasions, still become necessary.

There are a wide range of options available to formalise arrangements following a separation, and to finance relevant legal fees.

It is therefore always advisable to obtain tailored legal advice and a cost estimate from solicitors; decide on the appropriate plan of action with the selected legal team; and secure the source of funding for legal fees and associated costs at the outset.

For the less financially dominant parties, solutions are available to redress the balance in their legal proceedings, and create symmetry on both sides of the table – thus ensuring that the other side does not control or unnecessarily prolong proceedings.

Elizabeth Simos is an associate solicitor at Ketley Miller Joels, and Fraser Wright is senior partner at Quanta Capital