The reason for divorce.
Until no-fault divorce is in place the ground for divorce is irretrievable breakdown of the marriage based on one of five facts:
- Adultery
- Unreasonable behaviour
- Separation for two years, with consent of both spouses
- Separation for five years
- Desertion
You will need to select the fact to rely on which is most convenient to you. In this context, adultery specifically means sexual intercourse with a person of the opposite sex. If that person denies it, you may not be able to prove it, but you can use the fact of unreasonable behaviour instead.
Unreasonable behaviour is anything that makes it unreasonable to expect you to continue to live together. This can be anything from having separate social lives, or annoying habits, to behaviour amounting to domestic abuse. Often couples don’t want to have to say accusatory things about each other, and we can help you find the right the legal criteria while avoiding any conflict.
If you have been separated for two years or more you can divorce on a no-fault basis if you both agree.
We expect ‘no-fault’ divorce to become law in 2020, which will allow divorce to happen with a simple statement of irretrievable breakdown, with or without the agreement of both spouses.
What happened during the marriage won’t affect the settlement you get
If a marriage ends because one person has behaved badly they will still be entitled to their fair share of the matrimonial finances. This can often be very hard to accept, particularly when there has been adultery or domestic abuse, but the court will look at finances completely separately to the reasons for divorce. Only in some very extreme cases will a financial settlement take into account someone’s behaviour to their spouse as a reason to restrict their entitlement to financial provision.
It will take some time
There has never been such thing as a ‘quickie divorce’ even when everything is agreed between you. Unfortunately, the legal process will take some time in itself, and this is often extended by court administration times. What takes most time is sorting out the financial arrangements and you would usually wait to finalise the divorce until there is a final agreement in place about the money. It may take a minimum of six months to get divorced, but more usually it is somewhere between 12-24 months.
There is no formula for dividing the matrimonial finances
There is no one size fits all rule to apply. Each case will be different due to its own particular facts, and the outcome of someone else’s financial proceedings will probably be different to yours. There are legal principles and guidelines which help you understand what is joint matrimonial property, what can be kept separate, how to meet each person’s needs, how to share what is joint, and what is a fair outcome.
You don’t have to go to court but you do need a court order
Until you have a Decree Absolute from the court you are still technically married. The vast majority of divorces are dealt with administratively and take place without anyone having to go to court. With regards to the financial arrangements, you have to have a court order in place to make your arrangements enforceable and to formally end all your claims against each other. Without a court order it would be possible for one of you to bring claims against the other one in the future. You can have an agreement about money turned into a court order by consent, without having to go to court or issue legal proceedings.
Getting a lawyer doesn’t mean you have to have a fight
When you separate, there are legal technicalities in play that you will probably need professional advice on. Getting advice doesn’t mean that you want things to get nasty or are trying to get the better of your ex. All the lawyers in our family team are members of Resolution, which imposes a code of conduct based on avoiding unnecessary conflict between parties. We focus on finding the quickest and most cost-effective route to the best outcome. A lawyer can also point you in the direction of mediation, collaborative law, arbitration or some other form of non-court resolution to help you conclude things amicably.
Things you owned before the marriage or outside the marriage might be counted as joint property
When you end a marriage you also need to legally end your financial links with each other, otherwise they will continue to exist. This process starts with full disclosure of all property and debts owned between you. This covers everything, including businesses, pensions, inheritances, trusts, investments and income and anything else which you might own in your own name or jointly with a third party. In some cases, you will be able to keep some assets separate because they are distinct from the marriage, or you have made particular contributions to the matrimonial wealth. Whether this is the case will depend on many factors, including the length of the marriage, the needs of each party, the resources of each party, and the use of those assets.
Think about where you should get divorced
The process and law about divorce, financial separation and child arrangements are different in different countries. If there is another country where you have assets, have lived in or might live in, or have some other kind of link you might want to look at whether it is better for you to divorce here or there. Often, the UK is described as the ‘divorce capital’ and seen as providing generous financial awards to less wealthy spouses. This will not be true in every case, and will depend on your particular circumstances, so take advice on where might be the which appropriate country to deal with your divorce.
The children do not have to be involved
Unlike the divorce and financial aspects of separation, you do not have to have any legal documents in place with regards to the children when you separate. If you can both agree about how you want to share their time with you then that is the end of it. If you do not both have Parental Responsibility then you might want to get advice on how to obtain it. If there is a dispute about where the children should live and / or how much time they spend with their parents / where they go to school, etc. then this can be determined by court, formal agreement, or in mediation or other non-court process.
Preparation helps
For all sorts of reasons going through a divorce is extremely difficult and disruptive to every strand of your life. It always helps to get as much information and support as possible for each of those strands, not just the legal side.
We can help you with all the legal aspects of the divorce, such as financial settlement, child arrangements, property transactions, new Wills, or changes to business structure. Getting help in other areas will put you in the strongest position to get a good result and end up where you want to be.
Don’t ignore the emotional strain, make sure you have a friend to talk to, and sometimes this should be someone professionally qualified.
Get financial advice to understand how the divorce will affect your budgeting, retirement, tax liabilities, investments or business.
There are courses and programmes specifically tailored to teach how to co-parent after separating, when you may be struggling with adapting to a changed role in your child’s life, or with bad communication with your ex. You might be having to return to work or change your business plans and need a coach to help with specific new challenges you face.