Contemplating ending your marriage/Civil Partnership can be daunting to say the least and quite frankly, for many utterly terrifying. This dispiriting prospect has led many individuals to remain in unhappy, loveless and sometimes violent marriages for many years, and for some indefinitely. Over the years practising as a divorce lawyer, it has become apparent what these concerns are;
How will it affect the children? Where will we live? Who will get the children? How will I financially cope? Our finances are too complex, affordability, I will have to give away all of my hard earned assets’ to name a few.
All of the above are perfectly reasonable questions one should ask when making such a life changing decision. There are a lot of misconceptions on divorce with regards to how the law is applied. It is for this reason that it is vitally important to get proper legal advice from the outset. I strongly believe that the right advice at an early stage is crucial to minimising the emotional and costly impact. Ultimately, the key principle enshrined in Matrimonial law is fairness with primary consideration being given to the welfare of any children of the family.
The opening question I ask my clients, of which I can’t provide any legal advice on is simply this;
Is the marriage over?
If the answer to this question is a definitive yes, then I explain that in reality they have two options; remain in an unhappy marriage (either separated or together) or proceed with formally dissolving it either by divorce or judicial separation. If the answer to the question is no or ‘I’m not quite sure’ and the client intimates that there is prospect of reconciliation then in those circumstances I would advise the client to give their position further consideration before initiating the process of dissolving the marriage. I would highlight (which is not legal advice) that their decision should be based on what they want i.e. there is real prospect of happy reconciliation rather than an individual reaching a decision to remain married for fear of the repercussions as a result of a divorce.
The grounds for divorce
The answer to the above question will ultimately determine whether the threshold for getting divorced has been passed. In the England and Wales there is only one ground for getting divorced, and that is whether the marriage has irretrievably broken down. The person who starts proceedings is known as the petitioner and must prove that the marriage has irretrievably broken down by establishing one of the following facts;
II. Unreasonable behaviour
IV. 2 years separation with consent
V. Five years separation (no consent required)
The other party is known as the respondent. The vast bulk of divorces are petitioned based on the ‘fact’ of ‘unreasonable behaviour’. This is the law as it currently stands. However, I suspect in the not so distant future the law will change to allow non fault divorces without waiting 2 years or divorcing based on adultery. In reality, most courts and sensible solicitors adopt a pragmatic approach to ‘unreasonable behaviour’ in keeping the particulars of the unreasonable behaviour as non-inflammatory as possible. Ultimately, people should not be dissuaded from divorcing or waiting 2 years just to keep relations amicable. Sensible solicitors will explain to their clients (when acting for a respondent) that ‘unreasonable behaviour’ has to be cited as the other ‘facts’ are simply non- applicable and should not be perceived as hostile. Solicitors acting on behalf of a respondent can agree to particulars of the ‘unreasonable behaviour’ with the solicitors acting for the petitioner, again with a view to keeping the relations as amicable as possible.
I very much advise my clients not to get carried away in disputing the main suit divorce proceedings as outlined above, particularly if the marriage has indeed come to a conclusion. The key focus from the outset should be trying to sort out the substantive matters i.e. the arrangements for the child/children and reaching an agreement on the financial aspects. On the issue of child arrangements, if the parties are unable to reach an agreement between themselves, it is open to either party to make an application to the court for a Child Arrangements Order. The court determines such applications based on the ‘welfare principle’ i.e. the child/children’s’ interests are paramount. The initial stages of this process are most conciliatory with a strong encouragement for the parties to ultimately reach an agreement. Any such agreement can then be drawn up as a court order. In the absence of agreement, then the matter gets listed for a contested/final hearing at which point the decision will be up to a judge or magistrates and the key question for the court will be ultimately what is/are in the children’s best interests.
Turning now to financial matters, in order to assess finances there is a disclosure requirement i.e. the parties must disclose to each other details of their finances by completing financial statements (Form E’s), which are then simultaneously exchanged. At that stage, one can determine the extent of the matrimonial pot and thereafter try to reach a sensible and fair solution. It is very much advisable to have any agreement drawn up as a court order and lodged with the court to avoid any problems further down the line. In the absence of agreement, it is open to either party to make an application to the court for financial remedy proceedings.
Section 25 Factors
In considering matrimonial finances, the court will be guided by section 25 of the Matrimonial Causes Act 1973. First consideration for the court will be given to the welfare, while a minor of any child of the family who has not attained the age of 18. Furthermore, the court will consider the following:
a) The income, earning capacity, property and other financial resources which each of the parties in the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increases in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.
b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
c) The standard of living enjoyed by the family before the breakdown of the marriage.
d) The age of each party to the marriage and the duration of the marriage.
e) Any physical or mental disability of either of the parties to the marriage.
f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.
g) The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard.
Family law has evolved over the course of recent years, and although in some circumstances it is necessary to litigate, proactive family lawyers will try and look for sensible ways of settling cases, if possible outside of the court arena. As alluded to above, it is most important that parties contemplating divorce obtain the right advice from the outset to avoid greater difficulties further down the line.
Article written by Joseph Hendron - Partner at J W Hughes & Co LLP
Contact: Joseph Hendron 01492 874774