Thursfields Solicitors has issued guidance on what people need to know about divorce, and how to keep breakdowns as amicable as possible.
The advice comes with the arrival of what’s branded as ‘Divorce Day’ – the first working Monday in January.
Thursfields, which won the ‘Family Law Firm of the Year’ award for the Midlands at the Family Law Awards in 2018, said financial pressures and family tensions over the Christmas period often make couples question their relationship and potentially end their marriage.
Jasdeep Nagra, a Solicitor in the Family department at Thursfields’ Halesowen office, explained: “Many lawyers say they see an increase in divorce and separation enquires following the Christmas festive break, resulting in what the industry has come to know as ‘Divorce Day’.
But it’s not as simple as it sounds. In England and Wales, the only ground for a divorce is the irretrievable breakdown of a marriage, and this means it has to be shown that the marriage has broken down and cannot be re-established.”
Jasdeep explained that the legal procedure for a divorce is the same irrespective of what facts a person or couple decides to rely on.
While many couples will aim to keep a divorce amicable, the UK does not currently have a ‘no fault’ divorce, which means the Petitioner (the person making an application for a divorce) has to say negative things about their partner.
She said: “Couples usually start out by wanting to keep things as friendly as possible for the sake of any children and because they would prefer not to turn the relationship sour.
Unfortunately, because of the current lack of a ‘no fault’ divorce, this regularly results in a party relying on ‘unreasonable behaviour’ for the divorce to be successful in the courts, which may cause the parties relationship to deteriorate further.”
With this in mind, Jasdeep highlighted the most amicable fact that parties can rely on is a two or five-year separation, where they must demonstrate that they have been separated for a period of two or five years, and the other party consents to the divorce in certain cases.
But she acknowledged this may not appeal to some people as the waiting period is quite significant and does not allow parties to swiftly move.
One helpful approach suggested by Jasdeep is that couples can be deemed ‘separated’ while living in the same household.
However, they would need to demonstrate to the courts that although they are living under the same roof they are living separate lives, in terms of sleeping, eating and household chores.
Jasdeep said when a divorce petition has been filed with the court, the procedure should take approximately four to six months if both parties co-operate.
“The main concerns for some when separating from their partner will be in relation to their finances. Couples who have been together for a considerable amount of time will most likely have joint savings, and jointly owned family home and pensions.”
The starting point for any court will be to spilt assets 50:50, although any specific special contributions made by either party can be taken into account.
Spouses can claim for a variety of financial shares including periodical payments orders, lump sum orders, property adjustment orders, pension sharing orders and orders for maintenance for children.
Jasdeep explained that in deciding on any orders, a court would always consider the criteria in Section 25 of The Matrimonial Causes Act 1973, with the first consideration being the welfare of any minor children under the age of 18.
Various other factors the court must take into consideration include the income needs for both parties, their earning capacities, financial needs, the standard of living they enjoyed before marital breakdown, any physical or mental disabilities, any special contributions made by one party and the conduct of the parties.
Jasdeep said: “In many heterosexual relationships, the wife has typically maintained the household and looked after the children, while the husband works to provide for the family financially.
In such examples, the husband will have built up a pension to assist him financially in later life, whereas the wife will not be contributing towards her own pension as she may have taken time off work to look after the children.
Some make the presumption that a pension is not classed as a matrimonial asset, but it’s actually just as important as the family home.
This is because when both parties look to retire, the husband will be able to live a comfortable life with income from his pension, whereas the wife will be at a disadvantage, as she has not been contributing towards her pension and so her income will be significantly lower.
In such situations, a court may order a pension sharing order in favour of the wife.”
Jasdeep also pointed out that the courts main objective with finances is to ensure both parties are able to continue living their lifestyle as if they were still married, if financially possible.
Any financial agreement reached between the parties can be formalised into a court order and sent to the court for approval by a judge, typically at the ‘decree nisi’ stage of the divorce.
“Although divorce and financial matters are separate they do tend to run concurrently.
When the divorce gets to the decree nisi stage, that’s when you can make an application to the court to formalise your financial agreement.
It’s then sensible to wait until the financial agreement is approved by the court before applying for the decree absolute, the document that terminates the marriage.”
Jasdeep said another issue he regularly comes across is the assumption that if an unmarried couple have been together for a significant amount of time they will have the same rights as a married couple.
She said: “Unfortunately this is untrue, as there is no such thing as a common law husband or wife in the UK from a legal prospective, and so if a cohabitee ends their relationship then effectively what they own personally is what they retain following the breakdown. The parties will not be able to make financial claims against each other under the Matrimonial Causes Act 1973.”
Jasdeep added: “When a couple decide to end their relationship it has life-changing consequence for all involved.
It’s therefore strongly advised that individuals seek assistance from legal advisors in order to ensure the best possible outcome of themselves and their children.
The breakdown of a relationship is always difficult and knowing where you stand legally before commencement of any proceedings will be a big weight off your shoulders.”
Thursfields Solicitors, which has a specialist Family team with many offices across the West Midlands, is currently offering initial advice consultations for a fixed fee of £200.00 including VAT.
For further advice please contact Jasdeep Nagra on 0121 227 3863 or firstname.lastname@example.org