Hello, Legal Beagles! Will separation be best for my situation?

[Kitkaz]

I have been with my husband since 2003 and we've been married since 2008. We have 3 children (One I had before we met who's 20 and two under 10). We have been in a business partnership since 2006.

I am struggling with my divorce petition form as I cannot find the specific section where 'irreconcilable differences' is stated which my husband has requested. He would prefer to have an amicable end without any details disclosed and with as little hassle. He is worried that some information given might affect the chances of joint custody of our children. I was going towards the non contested due to his behaviour but he does not feel that is fair.

Financially speaking, I would like to know if it is best to separate first or apply for the non-contested route?

I would like the quickest way and for him to have joint custody. I would also very much prefer to remain in the house with the kids and keep working in the company. Our home and business are in one building which he is the only one named on the deed. His family have given a higher percentage towards the purchase and loan towards the building and I will have to figure out where I stand on that part.


Thank you.

[Peridot]

Hi Kitkaz,

This bit of divorce often causes confusion the only way a couple can get a divorce is through proving they have irreconcilable differences. It is the grounds for the divorce that you need to decide to go into the petition.

There are five grounds which can be found on the government website here:- https://www.gov.uk/divorce/grounds-for-divorce

Unless you have been separated for 5 years or you have been deserted for more than 2 years (two of the grounds) you would probably want to look at the following grounds.

1. 2 yr separation with consent -
   A couple can divorce on the basis of a two year separation provided they both agree to the divorce
2. Adultery - if one party has committed adultery you can divorce them on this ground. Provided you have an idea of a date it happened and you remained living together for less than 6 months after finding out, you do not have to name any third party. No-one has to know the grounds you divorced under as the decree absolute would not document the reason and this is the legal document that proves you are divorced.
3. Unreasonable behaviour - for which you would need 4-5 reasons and examples of the behaviour to document in the petition. The other person could contest it although it is not advisable. A contested divorce can become very costly and at the end of the day if one of the couple doesn't want to be married contesting the divorce isn't going to make things wonderful again. As I mentioned above the eventual decree absolute wouldn't list any of the reasons so would be unknown to anyone other than the couple. This is often the one that people find hard to swallow and if possible may be best avoided.

As far as his behaviour is concerned all I would flag here is as far as the children are concerned would his behaviour be a worry for you if he has regular contact, stop overs and holidays with them. An unreasonable behaviour that could be perceived as a risk to the children would of course factor in an Court decision. However, if you are able to agree contact arrangements between yourselves and you are certain that your children are safe then there is no reason for the divorce petition to be an issue. It is all about what is in the best interests of the children and knowing both parents is a starting point provided their welfare is being put first.

As far as the financial settlement is concerned you can make arrangements through a separation agreement but if you are certain you will be divorcing it may be as sensible to get it all done now and save the extra expense?

All the assets of the marriage will be considered as well as your earning capacity and ability to rehome yourselves. The most important will of course be the children and what needs there are as a result of that eg accommodation etc. There are various property orders that can be made that could allow one of you to remain at the property for example and the other take a charge over it that becomes payable when specific things happen such as they finish tertiary education for example. Depending on how the property is owned - joint tenants or tenants in common with his parents maybe will potentially influence how it is dealt with. This is a 10 year marriage so not insignificant. When the parents loaned the money was a Deed of Trust entered into or anything written down about how it would be paid back?

What is your relationship like with your in-laws? Would they have an issue with you remaining there with their grandchildren? The finances are the most difficult bit to agree but necessary. The starting point would be a 50/50 split between you but other factors come into play depending on earning capacities, childcare costs, other assets and debts etc. If you are able to reach agreement between yourselves this if the cheapest way but you would need to get any agreement checked by a family lawyer I would suggest before applying to the Court to get the settlement approved.

Firstly I would get your divorce petition underway. If we can give you any more pointers down the line do post again.