Splitting up when you have been living together
In England and Wales, if you aren't married or in a civil partnership then the laws which govern married couples and civil partners, don't apply. It's a common misconception that people who live together have a "common law marriage" which gives them legal rights.
The rules governing division of assets between people who cohabit without a marriage or civil partnership are very complicated although the court can still make decisions if there are issues concerning children.
To avoid conflict in the event of separation it is possible for couples living together to agree the terms of a Cohabitation Agreement, outlining how they intend to organise their finances, property and children. You can make an agreement at any time, even whilst still living together.
If you are living with someone and your relationship is breaking down, you may find Advice Now's Living Together and Breaking Up campaign a useful source of information about your current rights - www.advicenow.org.uk/guides/survival-guide-living-together-and-breaking
Separation
Sometimes couples separate but don't divorce, perhaps for religious reasons. They may still wish to reach a settlement about financial and children's issues but can't access the court without divorce proceedings. In those circumstances it is possible for the couple to enter into a Deed of Separation setting out the terms which have been agreed. If there are later divorce proceedings, the terms of the deed can be transferred to a legally binding court order.
It is also possible for couples who don't want to divorce but do want to obtain a legally binding court order reflecting their financial settlement, to Judicially Separate. This is a procedure akin to divorce, which results in a decree of Judicial Separation from the Court but doesn't actually end the marriage.
Divorce Or Dissolution
Divorce or dissolution formally brings a marriage or civil partnership to an end, leaving both partners free to re-marry or enter into another civil partnership if they wish. To obtain a divorce or dissolution the court must be satisfied that the relationship has broken down irretrievably.
You can get divorced in England and Wales, if you have been married or in a civil partnership for at least a year before divorce or dissolution proceedings can be started, if your relationship has permanently broken down and your marriage is legally recognised in the UK.
The amendment to the procedure to allow for 'no fault' divorce was passed in June 2020 and came into force on the 6th April 2022. Under the new legislation, couples can divorce without having to blame one another and allowing one spouse or the couple jointly to make the mutual decision that the marriage has broken down. The Act also modernises the legal terms used in a divorce, such as the decree nisi, will now be called a 'conditional order' and the decree absolute will be called the 'final order'. There will also be a minimum of 20 weeks between application and divorce becoming final.
You will have to pay a fee of £593 to the courts. If you claim benefits or on a low income you may be able to get help paying the court fee. You can either apply online or with a paper form. Once a decision has been made you may be asked to pay for some or all of your fees.
Divorce, dissolution or separation are unlike other legal situations because they are concerned with emotional as well as practical issues. The lives of the whole family are affected by the outcome, so the way in which the settlement is reached can be almost as important as the settlement itself. Both parties should, therefore, seek the advice of an experienced solicitor or mediator.
Only the individuals concerned can solve all the problems that divorce or separation bring. A good solicitor or mediator, who adopts a constructive and conciliatory approach, can help to reduce a lot of the distress associated with the end of a marriage or a civil partnership.
It is possible for couples to enter into a pre-nuptial agreement outlining what they would expect to happen or be entitled to in the event of their relationship breaking down. Pre-nuptial or cohabitation agreements are not binding in English Law currently, but can be considered by the court if there is a dispute when the relationship breaks down as it records the parties intentions at the outset. There are many misconceptions about couples "rights" if they live together but are not married and it is important to get legal advice. This can be very important when couples purchase property together but do not marry.
Further information:
The Children
Counselling Advice
Financial Issues
Mediation Advice for Couples
Domestic Violence
Separation
Useful Contacts and Organisations
Splitting Up when Living Together
Rights of Grandparents
Collaborative Family Law
Definition of terms Used
Taking Children Abroad
Checklist
