Sadly, divorce is now a fact of life. In the UK it is estimated that approximately 40% of marriages end in divorce. It is always wise to know your legal and financial rights in the event of separation from your spouse. Here are some tips from our divorce lawyers.
Taking the financial worry out of separation and divorce
In England and Wales you need to have been married for at least one year before you can file for divorce.
In 2014 it became compulsory for divorcing couples to attend a family mediation meeting. If appropriate a family mediator will work with a couple to try and find a solution that works for the whole family. This is not relationship counselling; it is designed to help a separation go smoothly rather than help a couple remain together.
Grounds for divorce
In England and Wales, there are five grounds for divorce and one party has to demonstrate one or more in order to prove that the marriage has broken down irretrievably. The grounds are:
- Unreasonable behaviour
- Desertion for a period of two years
- Separation for two years with consent; and/or
- Separation for five years without consent
The Law Society has a recommended procedure for handling how divorce proceedings are issued to minimise any conflict and likely costs.
Legal and financial
Going through separation and divorce is emotionally draining and it can be difficult to be objective about what is ‘fair’ in terms of a settlement. It is worth bearing in mind that you are more likely to achieve a fair outcome within a reasonable time frame if you can remain on cordial terms with your spouse.
The guidance below shows you how things are usually split and how you can protect yourself and your future.
Using a solicitor
Although you do not have to appoint a divorce lawyer to handle your divorce, for most people there are very good reasons for doing so particularly if you are struggling to reach agreement and a fair settlement is unlikely. Divorce and family law is a specialist area and most family lawyers are members of Resolution, a national group of family and divorce lawyers who abide by a Code of Practice, and many will also practise ‘collaborative law’ which is a means of negotiating a settlement in a non-confrontational way. It is important to choose an experienced solicitor who can represent you effectively both in and out of court.
Finding the best solution for your children
Negotiating where children live and how they see the important people in their life is a sensitive process. Ensuring that the parents have proper contact time is acknowledged as being crucial to children's welfare.
If children are born whilst you are married both parents have “parental responsibility” and this continues after you are divorced. This gives each parent and equal say in the major steps in their child's life. It is also important to ensure children stay in touch with extended family.
Most fathers and all mothers have legal responsibilities and rights when they are a parent, known as “parental responsibility”. Fathers have automatic rights if they are named on the birth certificate or if they are married to the child’s mother. In the case of unmarried parents, the father may need to apply for a parental responsibility agreement, or order.
A mother has automatic “parental responsibility” for her children from the moment they are born, regardless of the presence, or absence, of the child’s father.
Arrangements for the family home
Your family home, or in legal terms “the former matrimonial home”, can be the most emotive area for negotiation - particularly if your former spouse continues to live there. However, for most people it is likely to be the largest, joint asset so it is important to try and remain objective in order to protect your financial interest.
Who pays the mortgage on your family home, particularly if you have moved out, can be a major area of dispute. However, the simple rule is, if it is a joint mortgage then you both agreed to the finance and therefore you are equally liable for the debt. In the longer term, how the mortgage is arranged in future will depend on your individual situation, whether you’ll be selling the house or buying out your spouse.
Selling your property
Selling your family home is an emotional experience, packing away memories and moving on. It’s sometimes best to get things moving quickly: if you sell the house before your divorce is finalised, the proceeds can be split between each party.
Splitting your joint assets
It's a cliché that couples who are separating argue about who has the dog, the lawn mower and the furniture while the larger joint assets are rarely discussed. If relations between the couple remain amicable they can decide on the assets without a long drawn out legal process. However, there are no rules on the division of assets in the event of divorce but the law has established guiding principals, that a specialist family solicitor can advise you on. Ultimately a judge may have to decide what is fair but there are many incentives, even in court procedure for couples to reach a settlement that meets the needs of their family.
The car, investments, savings and valuables
You’ve worked hard to build up your business, perhaps with the emotional or financial support of your spouse. In the event of a divorce it’s important to protect your business to ensure it remains viable and to secure your future income. This can involve complex issues regarding taxation and other areas of law. It is important to seek advice early.
The cliché about arguments over the dog is in fact true: the ‘asset’ that divorcing couples can care about the most after the house, is the house contents and in particular the family dog. Although to their doting owners a dog is much more than a mere possession, under the law it is classed as property.
How does your breakup affect your pensions?
Your pension is probably not the first thing that springs to mind when you’re going through a separation. However, it is probably a bigger financial asset than you realise and the implications of your divorce could make a big difference to your pension provision. There are many options that surround the sharing of pensions and a divorce settlement should take these into consideration.
How to deal with joint debt once you separate
Money is often one of the most worrying aspects of separating from your spouse. It’s easy to try and bury your head in the sand but it’s important you don’t ignore debt problems, the sooner you can sort them, the easier it will be.
If money is tight and you’re struggling to keep up repayments on certain loans, credit cards, or the mortgage, you must prioritise to ensure your home is safe.
Applying for decree nisi
A decree nisi does not actually end the marriage but is a provisional decree that states the parties are entitled to a divorce. A decree absolute is required for the divorce to be finalised and the marriage dissolved. There is a six week compulsory delay between the submission of the decree nisi and the granting of a decree absolute.
Applying for decree absolute
The last hurdle of the divorce process is the decree absolute. You are allowed to apply for a decree absolute six weeks and one day after the decree nisi is granted. If you, as the petitioner, don't apply for the decree absolute, then your spouse can do so but only after three months.
To apply for a decree absolute, fill in the notice of application for decree nisi to be made absolute form. However, there may be important legal and financial reasons to not obtain a decree absolute before you have a financial settlement in place.
all images adapted from freepik.com