It is important that you first understand the differences between 'separation' and 'divorce'. If one or both of you agree that time away from one another is the best course of action, then you can separate by simply walking out on each other or by agreement.
In order to continue to live separately without a divorce you will be required by law to separate legally. Neither of you can remarry while legally separated until you have divorced, but you can begin to deal with other key issues such as children and financial matters.
If you later decide that you want to divorce on the grounds of the separation, you will need the consent of the other party unless you have been separated for 5 years or more.
The main terms of your divorce can be negotiated between you and your spouse, but in order to formalise the divorce, it will also involve the courts. The court will only grant you a divorce if a judge agrees that your marriage is at an end. The legal term for this is 'irretrievably broken down'. You must satisfy the court that one or more of the following is true as proof that your marriage is over:
- Adultery by your spouse
- Unreasonable behaviour by your spouse
- Desertion for a period of at least two years
- Two years' separation, if you both agree to the divorce
- Five years' separation, if there is no agreement to the divorce
before applying for a divorce, mediation can be a very useful approach for you and your spouse to discuss and reach agreement on issues such as financial arrangements and childcare. A skilled mediator can help you reach your own agreement that you both feel is fair, and may provide a less confrontational approach than communicating through the courts.
