Alternatives to divorce
42% of marriages end in divorce according to a study in 2012. The reality is, for whatever reason, marriage is not as permanent an arrangement as it was sixty years ago. However, although sixty years ago the divorce rate was higher, the social stigma and inequalities of divorce resulted in more people seeking alternatives.
Jump forward to the present day; It is the cost of getting divorced motivating many people seeking alternatives to divorce. Mediation can be a cheaper route to arranging the practical details of a divorce if both parties are able to negotiate, but fears of an inequitable split often drive couples to seek advice and representation from solicitors. As a lawyer must advise in their client’s best interest, both parties must have separate representation and this can be where costs start to rise.
For practical reasons, such as common interest in property and mortgages or financial affairs and taxation, it may be more practical to consider the alternatives to divorce.
A separation agreement deals chiefly with financial arrangements and many people find it useful to manage the practicalities of living apart from a spouse either before divorcing or dissolving a civil partnership.
This can deal with a number of practicalities; Setting out arrangements for childcare, who houses the children and terms for access to any children. If maintenance is required to help support one of you or your children, this can be set out formally. It may be better for one of you, particularly if having to consider the wellbeing of children, for one of a couple to remain in the family home. With property often a couple’s biggest asset, and one of the costliest parts of divorce negotiation, a separation agreement can set out who lives in the property and what happens to the proceeds if the house is sold. Similarly, other assets, often cars or furniture are included. Commonly, the division of savings, bills, debts, mortgages or rent will be dealt with in a separation agreement.
By formally setting out the arrangements for your shared interests and responsibilities couples limit the possibilities of conflict whilst they are separated and protect their assets. Of course, making such arrangements relies on both parties being able to discuss the terms of their separation agreement amicably enough that they are comfortable with the outcome being fair and equitable.
It is not possible to divorce within the first year of marriage. If a couple is separating within the first year, a decree is issued by the court severing the party’s obligations to one another whilst they remain legally married.
Judicial separation can nullify provisions for their spouse in any will either of the couple have made although it does not always affect rights in pension schemes.
Judicial separations are rare, with fewer than 600 issued in 2012, and come with many of the costs associated with formal divorce in a court.
Perhaps it is for this reason that the majority of couples will look at other options if their marriage breaks down at such an early stage.
In very specific circumstances a marriage can be ended by annulment. There are two types of annulment – ‘void’ and ‘voidable’.
A marriage may be annulled as void if the law prohibits the marriage, for example if the parties are too closely related for marriage, are already married or are under the legal age for marriage.
Voidable marriages describe circumstances where there is a defect in the marriage in the eyes of the law. If a marriage is never consummated, was arranged by coercion, under the influence of drugs or alcohol or one of the parties were pregnant or carrying a sexually transmitted disease at the date of the marriage it would be possible to apply for an annulment for a voidable marriage.
Married couples may choose to live apart to remove pressure from their relationship, giving them time to consider the next steps.
Often, an informal agreement is made between the parties, whether in writing or verbally. Informal agreements such as these are, in their nature, harder to enforce and relies on the goodwill of both parties to meet their obligations to the other and any children. Should the relationship end in divorce, a court may still take an informal agreement into account so the terms of such an agreement still require careful thought.
Many couples who have to live apart for practical reasons will have an informal agreement in place to describe the responsibilities of each party to the other or any children they may have.
Don’t get married
With marriages ending increasingly in divorce, one unromantic way of avoiding divorce is not marry at all. It is worth noting that marriage does come with some practical legal benefits but many of them can be replicated in other documents, financial arrangements and agreements.
Children of divorce are significantly less likely to get married themselves. It seems to stand to reason, with divorce on the rise, progressively fewer people will be marrying. Certainly, the combined average cost of marriage and subsequent divorce are great enough to have a bearing on the financial security of a relationship.
More and more people will be examining the pragmatic benefits of marriage over the romantic motivations of the generation before them.
In that regard, perhaps the attitudes toward marriage of sixty years ago are more relevant than ever.