3 key things to consider before proceeding with a divorce
September 30, 2020
“Happy families are all alike; every unhappy family is unhappy in its own way”.
The opening lines to Leo Tolstoy’s Anna Karenina will probably resonate with those couples facing separation and are in many ways as applicable to people’s experience of divorce; each person’s experience of divorce and separation is different writes Elizabeth Owen.
Although the breakdown of a marriage is more often than not an unhappy event, the process of divorce and arranging finances as a result of separation need not necessarily be an unhappy experience in itself.
Family law procedure has gone a long way in recent years in simplifying the process of divorce. It is possible for people petitioning for their own divorce to do this online, for example, and the stages leading up to the final step in the divorce process, obtaining Decree Absolute, have for a long time now been simplified by what is referred to as the ‘special’ procedure in undefended divorces.
Divorce is an emotional time and it is a stressful time. It can often be made less stressful if divorcing couples consider some of the following practicalities before proceeding with a divorce.
Understand that there is no ‘no-fault’ divorce and so think carefully about ‘how’ you are going to divorce.
At the moment there is still no such thing as a ‘no-fault’ divorce. The Divorce, Dissolution and Separation Bill which will change the law to allow ‘no-fault’ divorce, finally received Royal assent and became an Act of Parliament on 25 June 2020. However, the new law is not expected to come into force until the Autumn of 2021. This means that if you want to divorce now you will need to divorce under the current law. This states that the only ground for divorce is that the marriage has irretrievably broken down.
Irretrievable breakdown is proved by one of the following facts:
- Separated two years with consent of the Respondent
- Separated five years and no consent of the Respondent needed
This means that to divorce you either have to rely on a fact which involves apportioning some form of ‘blame’, or you have to be able to show that you have been separated for a set amount of time, with certain other conditions.
If the person who is not petitioning for divorce (the Respondent) does not agree to the divorce they are able to defend it (although this is rare in practice).
To make the emotional process of divorcing as easy as possible, the divorce ought to be treated, as far as possible, as an administrative process. It is therefore sensible, as far as this is possible, to agree with your ex ‘how’ you are going to get divorced.
If you cannot rely on the ‘blameless’ facts because not enough time has passed, try to agree which one of you is going to be the ‘petitioner’ and try, as far as possible, to agree on the description of the behaviour that is going to go into the petition.
One of the biggest delays in progressing a divorce petition is the court not receiving the ‘acknowledgment of service’ form. This is a form sent to the Respondent asking if they intend to defend the divorce petition or not. The divorce cannot progress until the court is satisfied that the Respondent has received the petition. There are ways of progressing the divorce if the Respondent has not returned this form and it is best to speak to a solicitor if you are in this situation.
Early co-operation about the ‘how’ of divorcing should help smooth out this process by ensuring that the Respondent is expecting the acknowledgment of service, and is ready, and willing, to return this and agree that they will not defend the divorce.
Understand that divorce does not end your financial ties to each other.
Almost always, the most sensible course of action when getting divorced is for the parties to obtain a financial order upon divorce.
Getting divorced, which happens by obtaining Decree Absolute, ends the legal contract of marriage, but it does not sever the financial ties between ex-spouses.
Even where divorcing couples agree on how assets will be divided between them after the divorce, unless the agreement has been turned into an Order by the court, and so made legally binding, an ex-spouse can still make a financial claim against the other in the future.
There is no time limit for making a claim and so a claim could be made many years after the Decree Absolute is granted. It means that should you, for example, come into a great deal of wealth in the future, unless you have a financial order severing your financial ties, your ex could still make a claim for a share of that wealth even many years later.
You should think as early as possible about obtaining financial resolution. Although a financial order cannot become effective until Decree Absolute is granted, the process of sorting out your finances can sometimes be quite long-winded and complicated, depending on your circumstances, and so it is sensible to give yourself time to do this in an organised and thoughtful way.
Be organised about sorting out the financial arrangements for when you get divorced and be realistic about possible outcomes.
Matrimonial finances can either be resolved by agreement between ex-spouses or by a Judge after one party makes an application to the court.
The overall aim of Family Law is to find a solution that is ‘fair’ to both parties. Each case will be different in working out what ‘fair’ looks like; there is no hard-and-fast formula and it is often more of an art than a science. The main factor in the vast majority of divorces, however, is what are the needs of both parties, and any children of the family.
To reach a fair outcome, and for a court to be satisfied that the outcome is fair, there has to be a process known as full and frank financial disclosure before considering a settlement. Full and frank disclosure is the process where each party gives the other all the details about their assets and income and other relevant circumstances. The ‘duty’ of full and frank disclosure is treated very seriously in family law, with both parties having to sign statements of truth and the courts having the power, for example, to change a financial order after it has been granted by the court if it later turns out one party has been untruthful.
This exchange of financial information can take place voluntarily between exes or within court proceedings. If this is carried out within court proceedings all financial information from both parties will be completed in a form called Form E. Even where parties are settling their finances voluntarily people often find they use Form E as it is a good way of making sure the parties have thought and shared details about, all relevant financial circumstances.
Form E is long and can seem quite intimidating. The best starting point is to go to the back of the form where there is a list of all the documents that you will have to provide to your ex, as far as they relate to your circumstances. Go through each item on that form and go and gather that piece of information. Some information, such as information about your pension, can take quite a long time to get, so bear this in mind when organising yourself.
Once you have all the documents that contain your financial information, then is a good time to start filling out Form E, as you will now have all the figures.
Once both Form Es are completed and exchanged there will then be an opportunity to question the other party’s financial disclosure. Again, as much as possible, try to keep your eye on the end goal and keep this as neutral and administrative as possible. It will not help move things along if either party uses any part of this process to air grievances so try and keep questions to what is really relevant, and this should be on whether there is anything that is missing or simply does not add up and requires explanation.
Once you are both satisfied you have the full financial picture, then you and your ex can have fully-informed discussions about how you divide the family finances in a way that is fair and that meets the needs of both parties but, most importantly, the needs of any children.
You can also look at whether you will be able to financially go your separate ways and bring a complete end to your responsibilities to each other, or whether there might need to be some form of ongoing commitment, either in the short term or, sometimes, in the longer term. This is usually referred to as spousal maintenance.
It is helpful to also bear in mind that if there are children of the marriage you cannot end those responsibilities even if all the other finances can be resolved once and for all. There ought to be ongoing financial obligations towards children of the marriage either through agreement or, if this cannot be agreed, through the Child Maintenance Service.
To become enforceable any financial settlement must be turned into an Order which is approved by the court. Unless a court approves your agreement, it does not, basically, exist as far as the law is concerned. So this is a really important final step.
Our team at Blackfords can help you prepare and then make sense of the finances. They can also assist you with understanding what would look like a fair settlement that meets your needs, and the needs of your children.
Often the first step with divorce is the hardest and sometimes having an experienced hand to set out some clear next steps for you to take, helps make that first step possible. Blackfords LLP offers initial fixed fee appointments for £150+VAT for one hour where we can talk you through the divorce process and help you make sense of that first step.
We can also support you throughout the process from start to finish or, in some cases, if you just need our help with something specific, such as turning your voluntary financial settlement into a legally binding document. Whatever it is that you are facing, our team of experienced family lawyers will be ready and able to help you.