Divorce and ancillary matters - a quick guide
It is widely accepted that divorce is one of the most difficult and traumatic experiences anyone can go through. Emotions are running high, which can make a complicated procedure even more stressful, especially if any disputes become protracted.
It is also a highly fact-specific process, typically with a different emphasis of what's important for each individual who goes through it. Whilst the strategies and approaches will alter depending on each person's discrete circumstances, it is still useful to know the basic framework of what's involved.
When dealing with a divorce, there are, fundamentally, three main potential elements (although there may be an array of other, less obvious ones, depending on the situation). Whilst they appear to be intermingled, different legal procedures apply. They are: the divorce itself; the need to address all financial claims you each have against the other; and, if there are children of the family, any issues concerning the arrangements for them.
In England & Wales, there is only one ground that enables you to divorce your spouse: the irretrievable breakdown of the marriage. It is a conclusion that the court must reach, which is based on the circumstances that you consider relevant and present to them in a Divorce Petition. In trying to prove that the marriage has broken down irretrievably, you must rely on one of five facts:
Two years’ separation with both of you consenting;
Desertion for a period of two years; and
Five years’ separation.
Unfortunately, under our current laws, if you have not lived separate and apart for at least two years, there is no such thing as a ‘no-fault’ divorce, although that is set to change shortly. If carefully managed, however, your Petition can be drafted in a way that is serious enough to convince the court that the marriage has broken down irretrievably, but does not seek to be unnecessarily critical of your spouse. It is important, if possible, that you both approach the situation in a transparent and constructive way, despite your marriage being at an end.
From filing the Petition, you will both take steps towards the pronouncement of ‘Decree Nisi’ (i.e. a sort of provisional divorce), with the ultimate aim of securing the ‘Decree Absolute’, which legally brings your marriage to an end.
On average, in ordinary circumstances, the divorce procedure takes between four to six months from inception to completion, assuming there are no other issues that need resolving first. With the impact of Covid-19, however, the divorce will likely, in reality, take at least double that time.
Having concluded the marriage is at an end, you will need to consider how you will resolve the many financial claims that you each have against the other. These financial claims continue to exist until the court either approves any agreement that you have reached, or makes a determination for you both in the absence of an agreement. Those claims do not terminate when you are divorced; it is perfectly possible to be divorced, but still have outstanding financial claims against each other. Hence, possibly the most crucial aspect of any divorce is to ensure your financial claims against one another have been resolved and approved by the court.
Factors such as the length of the marriage, the duration of any cohabitation prior to marriage, the earning capacities of both parties, the standard of living enjoyed by the family, and the contributions each has made towards the family, both now and in the future, amongst many other factors, can all have a bearing on how your matrimonial assets should be divided.
The presence of any prenuptial agreement can also affect any settlement, as well as the country in which the divorce is instigated. It is not uncommon for an advantage to be gained if proceedings are commenced in one particular country, assuming this option is available to you.
It is essential, for all these reasons and many more, that individuals contemplating a divorce seek legal advice at the earliest opportunity to understand the range of possible outcomes. Court action is not inevitable; the issues between you both can be resolved by alternative methods, such as mediation or arbitration. Many cases can, and do, settle without the need for court intervention. There is no 'one-size-fits-all' approach.
When trying to resolve matters, you should both be looking to reach an agreement on the division of all financial resources, but typically the following:
Capital – how your capital resources, such as the house, bank accounts, business interests and trusts, will all be dealt with.
Income – whether spousal and/or child maintenance will be payable, and, if so, at what rate and for how long.
Pensions – this is an asset which is often overlooked by people going through divorce. The division of any pensions, particularly final salary pensions, can play a crucial role.
There are a range of possible settlements, and no two outcomes are ever the same. What is right and appropriate for one family might not necessarily be the case for another, regardless of how similar the facts are.
Matters Concerning Children
When separating, especially in circumstances where it is permanent and you are both living in different properties, the biggest concern is likely to be the effect it has on any children. It is important to make sure, at the earliest opportunity, that suitable arrangements are in place for your children to spend time with both of you, unless there are welfare concerns that dictate otherwise, that need delicately handling. By reaching an early agreement, it can help reduce any potential conflict, which the children might otherwise be exposed to.
It is also important for your children to understand that they have two parents, who will continue to promote the other’s involvement in their lives, notwithstanding their own differences. In an ideal world, as parents, you should be able to sit down with one another to discuss any concerns that you have, in the hope that you can work together to determine the best way forward for your children.
However, sometimes life does not work out so neatly, and a bit of help and support is needed. If an issue arises that cannot be resolved, you may benefit from mediation to see if a mediator can assist you in moving the matter forward. The benefits of this process should never be underestimated, as it may ultimately mean the very last resort, being court action, can be avoided.
Of course, not all separations will make reaching an agreement with the other parent easy, and not all circumstances may benefit from mediation. If there has been domestic violence, for example, it is vital you speak to a specialist family solicitor first, as it may be that a more formal approach is warranted and justifiable in the circumstances.
It may also be that you cannot reach an agreement without input from the court. The issue could be anything such as who the children should live with, how much they should see the other parent, what school(s) the children should attend, what surname they should have, or even whether they should be allowed to move abroad permanently with one parent. In the absence of an agreement, the court can be asked to consider the issue, and determine what they consider to be in your children’s best interests.
The information contained in this post is for general guidance only, and does not constitute legal advice. For bespoke and tailored advice in relation to your personal circumstances, please do not hesitate to get in touch.