The breakdown of a relationship is always painful but it doesn’t always need to be traumatic, but some sensible, clear and practical advice from the outside will make things a lot easier.
The following advice relates to marriage but equally applies to civil partnerships, except that you cannot dissolve a civil partnership on the grounds of adultery.
Here are some of the divorce questions we are often asked:
What are the Grounds for Divorce?
The grounds for divorce are adultery, unreasonable behaviour, two years’ separation (if you both agree), five years separation, and desertion. Unreasonable behaviour petitions can be drafted in a sensitive and fairly neutral way; you don’t need endless pages of allegations. Adultery petitions do not require a third party to be named. You can’t apply for divorce based on ‘irreconcilable differences’; one of you has to be ‘at fault’, but this doesn’t mean that you can’t reach an agreement on which of you is going to divorce the other and on what basis.
Can I Get a ‘Quickie’ Divorce?
When thinking about divorce, one of the many questions that people naturally have is how long the process will take and, often, it is longer than initially thought. The process from petition to decree absolute takes around four to six months. Unfortunately there are no shortcuts! Sometimes you will be advised to delay decree absolute until your financial issues have been resolved. Many people don’t realise that there are two parts to divorce; the divorce itself is the process of legally ending your marriage. You will need to apply to the court for this, which is called the ‘petition’. You may also need to make an application to the court to resolve your financial issues, which is known an application for ‘financial remedy’. If you reach an agreement about your financial issues, you may want to make an application to have your agreement approved by the court to ensure that it is legally binding.
Will We Have to Sell the Family Home?
In England and Wales, the benefit of the family justice system is that decisions are based on the particular circumstances of each individual family. Whilst this means that you will not be shoe-horned into a ‘one size fits all approach’, it also means that there is no formula to provide a snappy answer. The court will look at all of your financial resources and your individual needs, and then try to achieve a fair outcome. Many families simply cannot afford to run two separated households without selling the family home. You should obtain an up-to-date valuation, an up-to-date mortgage redemption figure and calculate the equity in the family home. This will help you to decide how to use the equity to rehouse both of you.
Should I Stay in the Family Home?
There seems to be a notion that the person who moves out will be disadvantaged, but in the long term, this is not the case. The court will not make decisions about the future of the family home based upon who left or who stayed. It is better to make this decision by deciding how sensible it is to stay together under the same roof whilst you are separating. For some couples, this is not a problem. For others and their children, it can be simply too stressful. For many couples, finances will dictate whether one of them can afford alternative accommodation.
Will I Have to Pay the Mortgage if I Move Out?
Both parties to the mortgage are legally obliged to pay the monthly repayments until the mortgage is discharged or transferred into a different name. You must come to some arrangement with each other to make sure that the mortgage is paid. It won’t help anyone to put the family home at risk. You should talk to your lender if you know things are going to be difficult and payments might be missed. Make sure that you are both involved in discussions about payment holidays or conversion to interest only from repayment.
Does it Matter if the House is Not in Joint Names?
If you are married, the legal ownership of the home is not relevant. The court can transfer or change the ownership of the home, or make an order for sale and division of the proceeds, regardless of which of you is the legal owner.
Will I Get Maintenance for Myself?
The court will consider whether you need maintenance. You will need to look at your likely income on separation and your new budget for when you are on your own. You must be realistic about your future income and expenditure needs. If it is clear that you will not be able to manage, the court will consider the other party’s income and expenditure to see if maintenance is affordable. The desired outcome is a clean break. This means that there is no maintenance and you can each move on with no continuing financial obligations to each other. There are a number of ways in which this can be achieved; sometimes, if you have insufficient income you will be given a greater share of the capital rather than maintenance. This is an issue that needs to be considered very carefully.
What is Shared Residence?
This is an order that says your children live with both parents. It doesn’t mean that children have to spend the same amount of time with each parent. It gives a strong message that both parents are of equal importance. It perhaps matters more to the adults than the children, as children will be more concerned with the day to day arrangements rather than the legal terms used to describe their situation. It is important to remember that the vast majority of separating parents reach amicable agreements about the arrangements for the children and do not need court orders.
Does it Make a Difference if I’m Not Married?
Yes, this makes a big difference. The legal protection available to married couples is not available to cohabiting couples. For example, ownership of the family home cannot be altered in order to achieve a fair outcome. You may be able to argue that you have an interest in the family home, even if it is not in joint names, but this is complicated and you should seek specialist advice. There are certain applications you can make for financial support if you have children together but you cannot make any application for financial support for yourself unless you are married.
Will Divorce Be Expensive?
You don’t need a solicitor or a barrister to represent you, an many people represent themselves perfectly well. All of the necessary forms can be downloaded from the internet. You can always ask for specific help completing forms or drafting lettings if you want to limit your costs. Alternatively, you could do all of the paperwork yourself and limit your costs to paying a barrister to represent you at hearings. Another cost saving idea is to ask for advice at the outset to get an idea of where you are headed and whether you could get there yourself. Never be afraid to say you have a costs limit and that you cannot exceed it.
Many people can, and do, have a relatively civilised resolution to the breakdown of their relationship. There are many ways in which our barristers can help you to achieve this, as well as ensuring that you are adequately protected for the future. If you’re thinking about divorce or have any divorce questions not mentioned in this guide, do get in touch and we will be happy to help.