There can be a lot of new and confusing terminology to get to grips with when you separate divorce or dissolve your civil partnership. In this blog we have set out some of the commonly confused terms in everyday language and when they may be applicable to your situation.
Divorce – is the legal process for ending a marriage. This can be a same-sex marriage or a heterosexual marriage. You can divorce once you have been married for 12 months or more. When you divorce you will need to: file a divorce petition, your partner will need to complete an Acknowledgement of Service, you will need to apply for a Decree Nisi and apply for a Decree Absolute.
Dissolution – is the legal process for ending a civil partnership. This is a same-sex partnership (it pre-dates the change in the law allowing same sex couples to marry). There is currently pressure to allow heterosexual couples to enter into civil partnerships as an alternative to marriage – but no change in the law as yet. Read more about dissolving a civil partnership here.
Separation – is the informal process of splitting up from a partner. You can separate if you are cohabiting or, if you are married. There is no need to legally record your separation – it is a self-declared state. You might want to record it for your own personal records, and if likely to be disputed email your partner with a reminder of the date.
Legal Separation (sometimes called a Judicial Separation) – is a formal process of separation usually used when divorce is not an option (due religious reasons or because you have not been married for a year). A legal separation follows a similar process to filing a divorce petition and has a court fee to pay, just like in a divorce. For most people, it is not necessary to legally separate – an informal separation will suffice until they choose to divorce.
Separation Agreement - A separation agreement sets out how your finances will be divided and managed when you separate. It includes things like who will pay maintenance (child and or spousal), who will pay what regarding the home you share or any other properties. You can have a separation agreement if you end your cohabiting relationship or if you separate before you divorce.
Technically, Separation Agreements are not legally binding, however it is a contract so can be used, challenged or upheld in court under certain circumstances.
A separation agreement will carry more weight if: you have entered into it freely and with full understanding of the consequences of your agreement, had it professionally drafted, done a full financial disclosure (shown each other what assets, debts, pension and income you have), had the agreement witnessed, and neither partner’s circumstances have materially changed since it was agreed.
Financial Order - is like a separation agreement and sets out what will happen to your assets, debts, pensions and income. But unlike a separation agreement, a financial order is LEGALLY BINDING. You can only have a financial order if you are in the process of a divorce or a judicial separation. It is not something you can have before you reach a particular stage of divorce or judicial separation proceedings, or if you are not married.
You must be at the Decree Nisi stage of your divorce before you can apply to the court to look at your finances and make a financial order. You will have to do a financial disclosure to the court as part of the process (that means listing out all your assets and debts, pension and income on a special form). Both you and your ex will have to show each other your disclosure and sign a statement of truth about it.
A financial order can be made by consent or imposed by the court if you cannot agree a settlement with your ex yourself.
The court can make a limited number of financial orders if you are Judicially Separating – but has fewer powers than if you are divorcing.
Consent Order – is a financial order which has been made by the court with your agreement. It sets out what will happen to your assets, debts, pension and income. With a consent order, you and your ex both agree on how to split your money and ask the court to sign it off, rather than the court imposing a settlement on you. It’s important to remember a judge has the final say on whether to grant your consent order and will not sign it off unless it is deemed to be fair under English and Welsh law. A consent order needs to be legally drafted and can only be sent to the court once you have your Decree Nisi certificate.
Clean Break Clause – is a statement in a financial order that ends any future claims by either of you against the other. You can have separate clean break clauses for property, cash lump sums, periodical payments (child maintenance or spousal maintenance) or pension etc. The court likes you to have clean break clauses where appropriate as it makes things final and simpler in future and severs the financial ties between you permanently.
Clean Break Consent Order – is a type of consent order used if no action needs to be taken into relation to your financial assets and no maintenance will be payable .This may be the case if you don’t have any assets to divide or you have already done so. The benefit of a clean break consent order is that it will formally end your financial claims against each other.. You will still both need to give the court a snapshot of your finances (the financial disclosure) to have a clean break order.
It’s important to note, that if you have been married, then without obtaining a clean break order your ex can make claims against you in future, even if you have been divorced for many years.