Divorce and Separation

Divorce and Separation

The breakdown of a relationship will frequently be very traumatic and will need to be handled in a sensitive and professional manner.  The way in which any divorce or separation is handled may often have a significant effect on other aspects of the matter such as the arrangements for children and/or resolving any financial issues.  We provide very clear and constructive advice as regards the dissolution of a marriage or civil partnership. 

The only ground for a divorce is that the marriage has broken down irretrievably.  This may be established by satisfying the District Judge at the local County Court (who will read the paperwork) of one of the following 5 facts:-

• Adultery of the other spouse
• The other spouse having behaved in such a way that you cannot reasonably be expected to live with him or her
• Two years desertion
• Having lived separately for more than 2 years with the written consent of the other party to the relationship
• Having lived apart for more than 5 years where no consent is required.
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The rules relating to the dissolution of a civil partnership are identical except that there is no ground for adultery which only applies where a person has sexual intercourse with another person of the opposite sex.

It is necessary for couples to wait for one year to elapse from the marriage or civil partnership before they can apply to divorce. 

It is usual for divorce proceedings to be relatively straight forward from the point of view of the solicitor although we understand that they are frequently very emotional and traumatic times and we will therefore handle all matters in a very professional and sensitive way.  They will usually take approximately 6 months to conclude and it is very unusual for any Court hearings to have to take place.

Financial settlements

The dissolution of a marriage or civil partnership gives rise to the right of either party to seek a financial settlement.  We always try to resolve financial issues by agreement after there has been full disclosure of all of the relevant information. We advise on the range of orders which are possible and realise that issues over money and property can become acrimonious very quickly and we do our utmost best to avoid this and to achieve an agreed financial settlement in a conciliatory manner.  Indeed, where an agreement can be reached, the agreed terms will be incorporated into a written “financial consent order” which will need to be signed by both parties and will then require the formal approval of the Court to make it legally binding.

There are a variety of financial orders which can be made by a Court and which include:-

• Maintenance which is the payment by one spouse to the other to meet his/her income needs for an indefinite period or, more usually now a days, a set period of time to enable one party to adjust without undue hardship
• Child maintenance which can include school fees and similar expenses
• A lump sum of money which can either be made as one payment or, occasionally by instalments.
• An order in relation to a property which will usually take the form of a property being transferred from joint names to the sole name of one spouse or where it has to be sold
• A pension sharing or attachment order.  A sharing order will require part of the pension fund of one spouse to be transferred to the fund of another spouse whereas an attachment order is one where a spouse will pay pension income every month to the other spouse.

We always try to agree financial settlements wherever possible.  However, if no agreement can be reached, we will advise you on whether mediation is appropriate and/or whether it may be necessary for you to make an application to the Court to resolve financial issues.  The law will have regard to a variety of factors giving first consideration to the welfare of any children of the family and those factors include:-

• The incomes and earning capacities of each party which will often be very relevant to their ability to obtain mortgage borrowing
• The financial resources and in particular the housing needs of the parties
• Their ages and the duration of the marriage.  Generally speaking where a couple have been married for a long period of time then the family assets will be divided equally unless there is very good reason to depart from equality. 
• Their previous standard of living
• Their contributions to the marriage both financially and in terms of looking after children although, where parties have been married for a long period of time, contribution is generally recognised to be equal

The Court procedure is one whereby an application will be sent to the Court which will in turn issue an order which will require both parties to provide detailed statements setting out their financial positions and there will then be a preliminary hearing.  It is possible for there to be 3 hearings and this is one of the most difficult areas of law to predict the outcome as the Court has such a wide discretion.  There is no one right answer and we will generally advise on the range of orders which the Courts can reasonably make and always try to avoid final Court hearings as they can sometimes be unpredictable and result in neither party actually getting what he/she wants to achieve.

For our information sheet in relation to the financial aspects of divorce/separation please click here …

Unmarried couples

It is increasingly common for couples to simply live together rather than getting married.  It is often assumed that couples who live together will acquire legal rights but this is very inaccurate and there is no such things as a “common law man or wife”.  It makes no difference how long couples live together although a person who does not own the family home can sometimes acquire a financial interest in it.  Cohabitation itself does not create any legal rights although there are complex areas of law which can be used to enable a person who does not own a property to acquire a share of it.