Divorce & Family Resolution: A New Start for the New Year?05/01/18
“New Year, New You” is the age-old saying, and for many that means time for a fresh start. The press talks of January seeing a “divorce spike”, with an increase in new divorce instructions and divorce-related internet searches, as spouses take steps to address their unhappy marital lives and start the New Year afresh. Indeed this Monday (8th January) is often described by the press as “Divorce Day” when increased enquiries relating to divorce are made after stressful Christmas breaks.
Whilst we do not subscribe to the idea of a “Divorce Day” as such, if you are thinking about whether to talk to a solicitor about your marriage, finances and/or children, we can help.
There are a number of common misconceptions about divorce propagated by the media. We cover some of these issues below, but if you feel that your marriage is breaking down and you are considering the next appropriate steps to take, we would advise that you obtain specialist legal advice.
1) The “Quickie Divorce”
The press conveys the idea that if you are rich and famous it is possible for a “quickie divorce” to be granted in a mere 20 seconds. In reality, the divorce process takes far longer and the 20 second granting of a decree is just one step in the process, which can be broadly outlined as follows:
Filing a petition
In order to begin the divorce process it is necessary for one of you to file a petition at court. You need to be able to demonstrate that your marriage has “irretrievably broken down”. There are a number of criteria which you can use to do this, which we can advise you on. Once the petition has been filed at court, the court will issue the petition and it will then be sent to your spouse. You, as the person submitting the petition to the court, become the 'Petitioner' in the divorce proceedings.
When your spouse receives the divorce petition, they will need to send your solicitor an Acknowledgement of Service, confirming that they have received the petition. Once you have received this document, and assuming your spouse does not intend to defend the divorce (defended petitions are very rare), it is possible for you to apply for your Decree Nisi. This order is pronounced in court in a matter of seconds but rather than finalising the divorce, it is simply the court saying that it sees no reason why you cannot divorce. You are still legally married at this stage.
You must then wait a minimum of six weeks and one day from the date of Decree Nisi to apply for the Decree Absolute. Decree Absolute is the document which formally dissolves the marriage and after which, both parties are single. Then, and only then, will you be divorced.
We normally advise clients to ensure that their financial matters are resolved before applying for Decree Absolute.
2) “Common law wife”
In England and Wales the law relating to the breakdown of a cohabiting relationship is very different to that of a married couple. The notion of a “common law wife”, i.e. a partner who has been cohabiting as man or wife, without being married, for a considerable period of time and is therefore considered to be a spouse, is a myth.
As the law currently stands, cohabitees are offered very little protection in the event of a relationship breakdown. When married couples divorce, the court has the power to deal with the financial arrangements in relation to the marital assets and the provision of ongoing financial support. Conversely when an unmarried couple separates there is no similar legal provision and the law which applies is found in trust and property law and is of limited assistance.
If you are contemplating ending a long-term cohabiting relationship you should seek legal advice to find out what options may be available to you.
3) “50:50 division of assets”
On divorce, spouses will also need to resolve their financial affairs. There is a common misconception that all assets will be divided equally on any divorce. Simply speaking, that is not always true. The starting point on resolving finances is that the marital assets should be divided equally. However, the concepts of needs, sharing and compensation ensure that it is possible to deviate from an equal division of marital assets if it is fair and reasonable to do so.
If one party has a greater need for capital, the assets may not be split equally. For example, if both parties have similar housing needs but one has a much larger mortgage capacity, it could be argued that the party with less of a mortgage capacity needs more than 50% of the assets to enable both parties to re-house equally.
If both parties’ needs can be met with money to spare, then consideration should be given to fairly sharing what is left. The question of whether either party should be compensated for a financial disadvantage they have suffered as a result of the marriage also needs to be addressed.
The division of assets does not simply mean that the assets are tallied up and divided by two. Great care needs to be given to the needs of both parties, and any children, and the financial resources available to them, in order to divide assets fairly.
It is essential that financial matters are resolved in conjunction with your divorce and that specialist legal advice is taken in this regard.
If you are considering a new start and you need advice about the best way forward, even if it is simply an exploratory meeting at this stage to find out what your options are, our family team can provide support and experienced guidance.
You can read more about the members of our Family department here.