Separation
Judicial Separation
Although not used very often, this is a half way house that falls short of a divorce but still involves the Courts to recognise in a formal decree the fact that the couple is living apart. The marriage, however still exists, which can be important if there are pension rights to consider.
For some, this option may also be preferable because of strong personal or religious views about ending the marriage. The main advantage over the Separation Agreement or Deed is that the Court is involved and so can sort out issues about money or the children.
For example, if your husband or wife is reluctant to hand over details of his or her finances, then it is possible to issue proceedings and force that to happen through the Courts - just as in divorce proceedings.
Disadvantages
- The same procedures apply (or nearly) as in divorce, so you have to prove the same facts.
- There are the same sort of costs as in divorce
- If you are the one who does not want the marriage to be ended formally, there is a danger that these procedures might be amended or changed into divorce proceedings by your spouse.
Separation
There is no such thing as a "Legal Separation". You are either living together or you are not.
Simply living apart may be better than divorcing. Financially there can also be advantages in not divorcing - especially if one of you dies and in respect of pensions. There are also tax differences to think about. The difference is that you do not have a Court to help you to sort out the issues and move things along. Some cases need that - usually when one person is not agreeing to give financial details or when the basic issues cannot be resolved. Increasingly many couples prefer to sort things out constructively, without running up legal bills. They may ask their solicitors to run the discussions or they may go to mediation. Some couples talk things through themselves, but we do recommend that each person finds out what the legal position is first. Otherwise it is easy to think things are sorted when in fact they are either unfair or impractical.
When the financial or other issues have been sorted out, it is possible to have a Separation Agreement which sets out in writing what has been agreed.
Mediation
Why Chose Mediation?
Mediation is voluntary. It does not suit everybody. It involves a high degree of commitment on the part of all involved. It is not an easy process. It is often emotional and it requires tolerance and willingness to compromise on both sides if matters are to move forward.
The success of mediation will be based on:
- a willingness to co-operate (however minimal)
- competence - both parties need to feel able, with the advice of a solicitor behind the scenes, to negotiate with the other
- relative equality of bargaining power, although mediators are trained to redress imbalances.
Advantages of Mediation
- Control
- In mediation, it should be easier for you to control the course of your separation or divorce and avoid the need for Court proceedings where the Courts will impose their own timetable. Both of you are given the facts simultaneously and fully, using language which is familiar.
- Acceptance
- Acceptance of what you have negotiated should come more easily. Something that you participated in, working out the best solution. Negotiation involves compromise; although you may not feel wholly satisfied at the outcome, you will have rejected the alternatives in choosing a plan or plans.
- Cost
- Mediation is not free but mediators do not usually have the same level of overheads as solicitors. The expense is likely to be less than that of two solicitors handling a divorce from the start to finish. Even if not all the issues can be agreed in mediation, much of the preparatory work will have been done, thus saving on solicitors' fees. Discussing issues directly can sometimes save couples great amounts of time and money, rather than if they instruct solicitors to handle everything for them.
- Timing
- You can control the pace of the mediation in a way that suits you. Divorce proceedings may more easily be postponed while interim arrangements are considered and put in place.
Mediation does not eliminate the need for your own solicitor. Many people have an initial consultation before going into mediation, to help them focus on what the issues are, and to take independent advice upon them. No solicitor can act for both people involved. Any solicitor acting as a mediator cannot act for either one spouse or the other.
Many people use their solicitor as a consultant during the mediation process. This gives each party the opportunity to ensure all necessary information is there and they can then consider its relevance within the discussions.
The information gathered together in mediation is usually disclosed by agreement to solicitors. This is a helpful way of keeping down legal costs, since mediation as a service is substantially cheaper than most legal services.
The discussions that take place in mediation, other than the financial information which is disclosed to solicitors, is "privileged" or private. Those discussions cannot be referred to in a Court room and cannot be mentioned between solicitors unless their correspondence is also "privileged". This enables the couple to talk openly about their concerns and to consider any number of possible solutions, without fear of being "held" to a particular potential solution.
The aim of mediation is to work towards a written Memorandum of Understanding, setting out the points which have been resolved. This document will be prepared by the mediators and will also be private. It would then be shown to each spouse's solicitor so that they can advise upon the outcome of mediation. Following advice, if you and your spouse are happy with the agreement, then one or other solicitor may draft a detailed Deed of Separation or an order of the Court in the terms agreed. If solicitors are used in this consultative way during the mediation process, the legal costs are minimised.