Divorce
Sadly, divorce can be one of the most difficult, turbulent and anxious times in any individual’s life. As well as dealing with the breakdown of a relationship, consideration must also be given to the children of the family and the division of any assets.
The process does not, however, have to be contested, elongated or stressful, particularly if early legal advice is sought. Timely expert advice is therefore highly recommended to help you deal with the breakdown of a marriage in a pragmatic and cost-efficient way.
As a pre-requisite, you will need to be aware that prior to commencing divorce proceedings, you must have been married to your spouse for at least 12 months although there may, in certain circumstances, be a legitimate right to seek an annulment of the marriage before then.
It was April 2022 which saw the dawn of the implemented “no fault” divorce system in England and Wales, which does away with the need to either apportion blame for the breakdown in the marriage or meet certain other statutory requirements typically associated with the timing of one’s separation.
Under the new regime, applications for divorce can now be made individually or jointly and include an initial 20-week “period of reflection” before a conditional order (previously known as a Decree Nisi) can be granted. Thereafter, a final order of divorce (formerly known as a Decree Absolute) can be pronounced following the expiry of a further 6 weeks from the date of the conditional order.
Civil Partnership Dissolution
There is now no need to demonstrate that a civil partnership has irretrievably broken down; instead, under the new no-fault procedure, it is sufficient to apply for a dissolution based simply on a desire to do so and a pre-requisite component to prove that the civil partnership has been in place for at least a year before the dissolution petition is filed at Court.
Under the new regime, applications for a dissolution can now be made individually or jointly and include an initial 20-week “period of reflection” before a conditional order of dissolution can be granted. Thereafter, a final order of dissolution can be pronounced following the expiry of a further 6 weeks from the date of the conditional order.
Cohabitation Agreements & Disputes
There is a common misconception that if an unmarried couple live together, they will be considered ‘common law’ spouses and will benefit from the same rights which are bestowed upon a married couple. This is not the case. The Courts of England and Wales do not recognise ‘common law’ husbands and wives.
It is often the case in cohabitation cases that one of the parties will find it difficult to prove that they have acquired an interest in certain assets (particularly if these are not held jointly), such as property. A common example is where a property in which the parties live is registered in only one name. A number of factors will be taken into account by the Courts including financial contributions and intentions. The onus falls on the party who is not registered as a legal owner to assert that they hold an interest in the property. There are ways of evidencing a "beneficial" interest in property if your name does not appear on the deeds which we can discuss with you in depth along with the merits of any claim.
In order to avoid such disputes, it has become increasingly common for cohabitees to enter into an agreement seeking to regulate the basis of their cohabitation. The agreement will usually direct how the net equity in any property is to be divided on an eventual sale and can also regulate how other assets and finances should be apportioned on the unfortunate breakdown of a relationship. Although people are often reluctant to consider these agreements at the outset of a relationship, the advantages of having such an agreement should not be underestimated. A properly drafted agreement can prevent the emotional stress and costs of entering into lengthy litigation to solve any dispute.
Finances & Financial Settlements
The breakdown of a marriage or civil partnership can create a significant amount of stress on its own, let alone having to also consider a financial division. It is therefore important to seek expert advice on the division of the assets as early as possible which will also bring with it piece of mind and clarity.
The starting principle on divorce is an equal division of the marital assets, however, the Courts are able to exercise their discretion and can deviate from a 50/50% split by considering a number of factors which are outlined in the governing legislation: the Matrimonial Causes Act 1973. Examples include the length of the marriage, the ages of the parties, their respective earning capacities and the prevalence of any dependants under the age of 18.
It is invariably advisable for parties to attempt to reach a fair and just settlement out of Court, however, it is appreciated that this may not always be possible. If no agreement can be reached, this could result in either party issuing financial remedy proceedings. These proceedings can be protracted and expensive but the parties would not be precluded from negotiating with one another during that process. Indeed, this is actively encouraged and it is a requirement that parties must attempt to mediate their issues prior to issuing proceedings, unless they are exempted.
If a settlement is reached between the parties, it is important for those terms to be embodied correctly in the terms of a financial ”consent order”. The order will, however, need to be lodged at Court for approval even if financial proceedings have not been issued. It is necessary for there to be divorce/dissolution proceedings up and running (and for a conditional order to be pronounced) before the Court will consider the draft order. It must be borne in mind that simply because an agreement may be reached between the parties, it does not mean that a Court has to approve it. Ultimate discretion rests with the Court. It is therefore strongly advisable for legal advice to be taken on any agreed terms as quickly as possible to avoid possible delays and additional costs. The Courts are primarily concerned with fairness when considering the terms of a settlement. Provided these are deemed reasonable and adequately cater for the parties’ (and any child’s) needs, subject to individual circumstances and an understanding of the rights which are either bestowed or foregone as a result of the would-be implemented order, there is a good chance the settlement will be approved.
In the event there are no assets to be divided between the parties and/or any inherent spousal maintenance claims, it may still be advisable for a ‘clean break’ consent order to be lodged at Court to prevent any future financial claims from being made by either spouse.
Variation of Financial Orders
There is an ongoing duty imposed on every party to “financial remedy” litigation (i.e. those proceedings which are commenced with the intention of determining the division of matrimonial assets on divorce or partnership assets on the dissolution on a civil partnership) that they act openly and transparently in relation to their financial worth.
There have been landmark rulings which enable a party to apply to the Court for reconsideration of the terms of financial settlement where new information arises that was not disclosed at the time the parties reached agreement. If it is found that any such new information could have justified an altogether different split of the assets/finances, the wronged party will have the right to ask the Court to reconsider what their entitlement should have been.
In the event that you have concerns over the basis for financial settlement emanating from divorce, please contact us today. Whilst recent case law dictates that there are, strictly speaking, no deadlines for applying to vary an Order, it is important for any successful claim that steps are taken to draw the Court’s attention to any such material change in circumstances at the earliest opportunity. A failure to do so could potentially be prejudicial to the merits of any application.
Separation
Sometimes divorce/dissolution is not the preferred option for separating parties, for example, where there are cultural issues in play or simply where the parties have not fully determined whether their relationship is over.
If the parties do not want to issue divorce/dissolution proceedings but are looking at period of separation, it is still advisable to record any proposed division of the assets and any arrangements in respect of children. Such agreements can be an effective way of evidencing the split of the assets and can ultimately save the parties costs and time in the long run. However, it must be noted that agreements of this sort are not automatically binding and the Courts retain ultimate discretion as to whether the terms will be upheld.
In the event that a separation agreement is your preferred method of evidencing the division of any assets, it remains necessary for there to be full and frank disclosure of each party’s financial circumstances. It is strongly advisable for legal advice to be obtained as to the fairness of those terms.
Nuptial Agreements
A pre-nuptial agreement (also known as a "pre-nup") is an agreement entered into prior to marriage/a civil partnership by intended spouses with the objective of setting out what will happen to their assets on divorce/dissolution. A pre-nup should be entered into at least 28 days before the wedding ceremony.
A post-nuptial agreement (commonly referred to as a “post-nup”) serves the same purpose as a pre-nup, but is entered into by spouses/partners following their marriage/civil partnership.
Experts in Drafting Nuptial Agreements
Whilst not legally binding in England and Wales, significant weight can be given to pre-nups provided they are entered into correctly and drawn up in an acceptable form.
The Courts now have a track record of recognising the legitimacy of certain pre-nups provided they are entered into in a timely fashion prior to marriage/a civil partnership (usually 28 days before the ceremony), where each party has had the benefit of independent legal advice, the terms are fully understood and neither party has coerced the other to enter into the agreement, with there having also been full and frank financial disclosure of all assets, liabilities and income in the preparation of the document itself. The Courts will also need to consider whether any injustice would be served by agreeing to the division as stated. Absolute discretion will rest with the Courts in deciding whether or not an agreement should be followed when determining the outcome of any divorce/dissolution.
In the event that the 28-day period is missed, it is still possible to enter into a post-nup setting out the proposed financial split on divorce/dissolution. The above factors would, however, still apply when determining whether the terms of the agreement are ultimately deemed fair by a Court.
Children
On the breakdown of a relationship, it is not uncommon for disagreements to arise in relation to children. Usually, the areas of conflict will centre around the living arrangements for any child and/or how often they spend time with the ‘non-resident’ parent. Although it as an emotional time for all involved, the primary focus will be on the needs and best interests of the children.
It is always desirable for an agreement to be reached in relation to the arrangements of a child, however, this is not always possible. An application for a ‘Child Arrangements Order’ may need to be made to the Court to help adjudicate on these issues. The Court’s key consideration will be the welfare of the children when deciding such matters. The usual stance adopted by the Courts is to recognise the importance both parents play in the upbringing of a child and to facilitate as much contact as is deemed reasonable. There are, of course, exceptions to this – particularly where a parent or a third party may be regarded as a risk to the safety of a child.
If you and an ex-partner are unable to agree on specific issues that affect your child, the assistance of the Court can be sought. Such issues can include the child’s medical care or educational needs. In addition, if your ex-partner has made a unilateral decision in relation to your child’s upbringing without your consultation and which prejudices or is likely to prejudice the needs/wellbeing of your child, you may be able to make an application to the Court for a ‘Prohibited Steps Order’ to prevent this from being implemented and/or a ‘Specific Issue Order’ to reverse any such detrimental steps which may already have been taken.
Maintenance
Applications for maintenance can be made either for the benefit of a spouse/civil partner or a child of the family.
It is often not sufficient to merely consider a division of the capital assets of a marriage/civil partnership as this may not adequately provide for the needs of one spouse/civil partner, especially if they are the financially weaker party. If the financially weaker party is in receipt of a lower income or is considered the ‘homemaker’ and cares for any children (who are either under the age of 18 years or dependants), it is invariably the case that the financially stronger spouse will be required to pay some form of maintenance. The circumstances of each individual case will determine the duration of any maintenance that may be paid. The Court may order the maintenance to be paid until a specific date or until a certain ‘triggering event’, such as the re-marriage of the recipient spouse, although in some (albeit increasingly rare) cases, maintenance may be payable for the joint lives of the parties (i.e. until one of them dies).
If a spouse/civil partner is not in a financial position to wait for maintenance until proceedings have concluded, an application for an interim maintenance order can be made. This application would focus on what that party’s immediate needs are and will determine the level of temporary maintenance to be paid until the conclusion of the financial proceedings.
On separation, a resident parent may make a claim for financial support for the benefit of a child of the family. Child maintenance is payable for children who are either under the age of 16, under the age of 20 and in full-time education (up to A-Levels or equivalent) or under the age of 20 and living with a parent who is registered to receive child benefit for them.
It is often the case that parents are able to mutually agree on a level of child maintenance, however, this is not always possible. If not, an application may need to be made to the Child Maintenance Service (CMS) if certain criterion are met.
The level of child maintenance payable is calculated on the non-resident parent’s gross rather than net income and will vary depending on the number of children that are to be catered for.
Injunctions
The Family Law Act 1996 offers protection if you or your child have suffered or are currently suffering domestic abuse from a spouse, civil partner or partner. You may be able to apply for a non-molestation order and/or an occupation order in respect of the family home.
A non-molestation injunction is a Court order that prevents the perpetrator from threatening violence towards you or your child and from intimidating, harassing or pestering you or your child (whether directly or via a third party). If the perpetrator breaches the terms of the injunction, he/she can be arrested and possibly prosecuted.
An occupation order can be obtained to either prevent somebody from returning to or continuing to live in a property in which you have a right to reside. It is viewed as a fairly draconian type of order so it is important that you seek legal advice as soon as possible in order for the merits of your potential application to be assessed. The Courts will consider the “balance of harm” test when deciding whether an order should be granted and will also need to assess the needs and welfare of the perpetrator as well. However, the welfare of any child involved will be the primary focus for the Courts. Such an order is seen as a temporary measure and therefore they are typically granted for a term of no more than 12 months at any given time. In certain circumstances, these orders can be extended.
We are also able to advise clients on the prospect of applying to Court to safeguard against the possibility of there being dissipation of wealth and/or to preserve wealth in anticipation of or during the course of financial remedy proceedings which emanate from divorce/dissolution.
It is crucial for any injunctive relief application to be made quickly as any delays in acting may diminish the merits. If you are therefore seeking the protection of an injunction, you should seek legal advice as soon as possible.
