Divorce
1. How long will the divorce take?
If both parties wish to proceed at a reasonable pace and both do all that is required promptly, then the divorce process might take between 4 – 6 months. However, other aspects of the separation process, ie financial settlement may result in advice being given not to proceed to decree absolute (the position when your marriage is dissolved) prior to resolution of those other matters. Complications within the divorce process can also cause delay.
2. On what grounds could I issue a divorce petition?
There is only one ground for divorce and that is that the marriage has irretrievably broken down. To prove this a party may rely on one of five available facts being adultery, desertion, unreasonable behaviour and separation for a period of either two years (if the other party consents) or five years (if there is no consent). It is always best to obtain the necessary admissions or consent from the other party prior to the issue of any divorce petition in order to save costs and time.
3. Will it matter on what basis the divorce is issued or which of us issues it?
In the majority of cases it will not matter on what fact the petition is issued nor should it affect the way in which assets are divided or how issues relating to children are handled. In a small number of cases where conduct has been extreme there may be an effect but those cases are very limited. There may be cost implications for the party in receipt of the petition.
4. What is the difference between decree nisi and decree absolute?
The decree nisi is the provisional decree of divorce pronounced when the court is satisfied that a party has met the legal and procedural requirements of a divorce. A party must then wait at least 6 weeks and 1 day after the pronouncement of the decree nisi before making application for the decree absolute. The decree absolute is the decree which actually dissolves the marriage. Decree absolute has effects upon inheritance under a will so it is best to review a party’s will at that time.
5. How much will it cost?
Ideally agreement should be reached between the parties or their solicitors as to who is to pay what amount towards the costs of the divorce proceedings (not the financial proceedings). This is because the Petitioner (the party who files the divorce petition) generally has to initially pay 90% of the costs including payment of the court fees. If a claim for costs is made in the petition, and there is no agreement, a court is able to make a costs order against the Respondent (the party who receives the petition) that he pays the Petitioner costs (as well as his own). Generally such a costs order might be in the region of £1,000 - £1,200 so it is worth trying to agree costs in advance.
Financial settlement
1. Can I reach a financial settlement without having a divorce?
Yes, if you wish to do so, but it is always advisable to have received full financial disclosure from the other party before making such agreement and to receive legal advice upon that agreement (otherwise it may not be of any effect in due course). It is possible to set out the agreement in writing in a separation deed but that deed is not binding upon any court which may later consider the financial issues. The court may however take notice of that separation deed in the future if further financial claims are made particularly if the process of financial disclosure and legal advice has been undertaken properly at the outset.
2. Why should I record the financial agreement we have reached in a court order?
The court order will clearly set out the terms of the financial agreement reached and the basis upon which that agreement is reached. It will, if appropriate, dismiss future claims to bring some certainty and finality to the whole settlement process. A court order setting out the financial settlement is generally only available within the divorce process and then only once the decree nisi has been pronounced. If the order is not complied with, it may be enforceable similar to any other court order.
3. How long will the financial settlement take to reach?
The timing of a financial settlement is very difficult to assess as it will depend upon many factors including whether matters are dealt with by the parties voluntarily or pursuant to a court timetable, how complex the assets may be (ie whether they need to be valued by an independent expert), whether each party is fully co operating with the process and how backlogged the court resources are at the time. In theory it could take 6 weeks or it might take 12 months.
4. Will we have to go to court?
The majority of financial settlements are resolved by consent ie agreement between the parties. If agreement can be reached at an early stage it is possible that the court order can be obtained without either party having to attend court. Sometimes it is necessary to attend one or two fairly short court appointments where negotiation can result in financial settlement. The court process is designed to assist and encourage settlement negotiations. It is rare for financial claims to have to proceed to a final hearing. Where one or other party is being unco operative or unreasonable in their approach to the settlement, it may be that final hearing is the only way to resolve issues but that situation should be avoided at all times not least due to the cost likely to be incurred and the fact that both parties lose any control over the outcome if the District Judge has to rule on settlement terms. An agreed settlement can cover a wide range of issues that a court cannot cover.
5. On what basis will the court determine the financial settlement?
The court has to consider essentially three heads of claim –how to divide the parties capital assets (business interests, investments, savings, the home and other properties, overseas or trust assets, share options and pensions); how to divide the income available if at all, and whether there should be any ongoing future responsibilities to provide on the death of one or other party.
The court has a wide discretion on how such claims should be approached. The court will have as it’s paramount consideration the housing of any minor children. Thereafter it will consider various factors set out in legislation including the resources of each party, the length of the marriage, the standard of living enjoyed during the marriage, the age of each party, any health issues, and the contributions made by each party to the marriage. In relatively few cases one or other parties conduct might be relevant but this is rarely the case.
The way in which a case is approached and put forward in form E (the standard form of disclosure) is very important both in terms of securing the most appropriate outcome for financial settlement and saving of legal costs. Legal advice is needed at an early stage to establish sensible expectations, if necessary to protect assets, and to set up sensible interim provision if appropriate.
Whilst at JMW Solicitors we adhere to the Resolution code of conduct ie to conduct negotiations in a conciliatory manner, so as to achieve a good outcome without acrimony (particularly relevant where there are children of the marriage), there are times when we have to provide robust advice to clients and/or take a firm stance with the other party. It is however for the client to provide instruction in response to our legal advice.
6. Will it be a clean break financial agreement?
A clean break is where there are no ongoing financial responsibilities between the parties following financial settlement although this does not include child maintenance. Where possible the court will seek to achieve a clean break either immediately upon financial settlement or in the foreseeable future. The same approach is therefore adopted in negotiations. In some cases it is not possible to achieve a clean break.
7. How much are the financial procedures going to cost me?
The general rule now is that each party is responsible for their own costs in connection with the financial negotiations or court proceedings.
The court might consider it appropriate to make costs orders against one or other party if that party does not co operate fully, or act reasonably, in the litigation process. This may include non disclosure of financial issues and non compliance with court orders.
Where payment of costs are proving to be a difficulty there may be banks or other institutions which are prepared to assist with the payment of costs by way of loan, overdraft or other facilities. JMW can assist where necessary in identifying such banks or other institutions.
Children
1. Do we still have to deal with issues of custody and access if we separate?
No, the introduction of the Children Act 1989 in early 1990’s did away with these concepts. The court now operates a non intervention principle. If the parents are agreed on all issues then the court will not interfere by making unnecessary orders.
If however there are disputes relating to the children such as to residence (where a child is to live), contact (how much time is to be spent with the other parent), or on a specific issue (such as holidays, medical treatment or education) the court will make an appropriate order. In some situations they can make prohibitive orders to prevent a parent acting in a certain manner (such as removing a child from the country).
In making an order the court will have regard to various factors set out in a checklist called the Welfare Checklist. This includes such issues as physical, emotional and educational needs of the child, likely effect on the child of any change, age, sex background of the child, any harm he has or is at risk of suffering, and the ascertainable wishes of the child. However the paramount consideration in all cases will be the welfare of the child.
2. What if I am not married to the child’s Mother – will it make any difference to my rights?
Both married parents will retain parental responsibility for their children following a divorce. Parental responsibility is identified as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
However in some cases where the parents are not married the Father may not have parental responsibility for a child. This can be obtained however by either having a formal written agreement with the Mother or by court order. It is advisable to obtain parental responsibility in all cases.
Generally a Father who is not married to the child’s Mother will have parental responsibility if he is registered on the child’s birth certificate as the Father. However if the child was born before 1 December 2003 this may not be the case and legal advice should be obtained.
Parents who have parental responsibility should make decisions about the child’s life jointly and this may include decisions about medical treatment, religion, education, adoption, change of surname or removal from England and Wales.
3. I would like to take my child to live in New Zealand – will that be okay?
In order to remove a child permanently from the court’s jurisdiction, being England and Wales, (NOTE not Scotland or Ireland), the parent intending to remove must have the consent of the other parent with parental responsibility to do so (it is advisable to have such consent in writing).
If a parent is met with a request to consent to removal from the parent with care, it is best to clarify matters as to address, contact telephone number, education arrangements, and contact provisions before providing any such consent. In certain cases it might be best to obtain legal advice before making any response to this request.
It is an offence to remove a child from the court’s jurisdiction (England and Wales) without the consent of the other parent with parental responsibility. To do so may have serious consequences both in terms of the offence committed and future contact with the child.
If the parents cannot agree the court will determine the issue after careful consideration of all factors.
4. Who is the Cafcass Officer and what is his/her role?
If an application is made to the court, the court may order that the Cafcass service prepare a report on the issues in the application and that report will generally contain a recommended way forward. That report will be prepared after having met with the parents and the child(ren) and with regard to the various issues set out at question 1 above. The Cafcass Officer is effectively the eyes and ears of the court and his/her recommendation is very important as the court is bound to follow it in the absence of cogent reasons not to do so.
5. How can we decide what level of maintenance I should pay for my child?
It is always best to try to agree the level of child maintenance if at all possible. That agreement may be based loosely around the provisions in place for the Child Support Agency (CSA). In the absence of agreement the only remedy is to make application to the CSA for an assessment. The court has no right to become involved in disputes over child maintenance.
If agreement is reached within a financial settlement on divorce as to the level of child maintenance, the agreement can be recorded in the consent order. However such an agreement is only legally binding for 12 months from the date of the court order. Either parent can then change their minds and make application to the CSA. It is to be hoped that both parents would stand by the agreement reached but that cannot be enforced.
Whilst the basic CSA criteria appears straightforward (ie 15% of a parent’s net income for one child, 20% for two children and 25% for three or more) the position is a little more complicated with particularly provision for those seeking to reduce the amount payable. Similarly the issue of child maintenance may form part of the whole financial settlement upon separation with appropriate adjustments up or down.
6. What is mediation all about and is it suitable to resolve my issues relating to my children and/or our finances?
For those parents who are able to communicate (and sometimes for those who are not) mediation is an effective way forward when disputes arise in relation to children. It is always best for issues relating to children to be resolved direct between the parents and mediation can provide a sensible and safe forum for that to happen. It is also a cost effective way to resolve disputes. Both parties attending mediation are entitled, and encouraged, to take legal advice beforehand so that they are aware of the legal position. It is not for the mediators to provide legal advice (not all mediators are legally qualified).
Cohabitation
1. What is the current position with a common law wife/husband?
There is no such thing as a common law wife or husband. Either a party is married to the other party having gone through a civil ceremony of marriage or they are not.
If parties are married the provisions relating to the marriage above are relevant. If the parties are not married there is little comprehensive law covering their positions and this leaves a cohabitant very vulnerable with limited possibility of financial claim on the other partner.
In certain cases claims are possible in relation to the home in which the parties live. This generally entails some form of financial contribution having been made to the property or for there to have been a common intention that the property would be shared. The law is complex and legal advice should be taken.
There are always financial responsibilities for children. Those financial responsibilities may vary according to the individual financial circumstances of the parties.
Unfortunately the Government recently shelved proposals to provide cohabitants with
certain rights and benefits upon separation. There is no certainty as to when or if cohabitants will achieve any rights in relation to the other’s property, assets or income as a result of the relationship.
Agreements
1. Are pre nuptial and pre partnership agreements now binding and are they of any use?
No, pre nuptial or pre partnership agreements are not legally binding at present but that does not mean that they are not very useful documents.
Firstly the issue of enforceability only arises if one or other party wants to depart from the terms of the agreement and make financial claims on the other over and above that previously agreed. In very many cases the provisions set down in the agreement are followed in the event that the marriage/partnership breaks down. In those cases the agreement provides a useful and accurate record of what was agreed at the outset.
An agreement can be persuasive upon a court at later date when considering how the court should use it’s discretion in dealing with financial claims. However if the content of the agreement is to be taken into consideration (no matter to what extent) some basic procedures must have been carried out at the outset. Each party must have given financial disclosure of their income, assets, pensions and liabilities and each must have had the opportunity to take independent legal advice before signing.
2. What agreements should I consider putting in place if I am going to cohabit with my partner?
If the home is to be purchased in joint names and one or other party is financially contributing more than the other (this may be a deposit paid by parents or similar) then there should be a trust deed in place to record the respective shares in the property.
If parents are lending or contributing monies then they should obtain separate legal advice to protect their positions.
All cohabitants should consider having a cohabitation agreement which sets out what is to happen both during the relationship (who is to pay what bills etc) and in the event that the relationship breaks down (who is to remain in the home etc). It is also useful to cover what is to happen should one party die. These agreements are not legally binding but as with the pre nuptial agreement provided certain procedures are followed they can be very useful documents in the event of a later dispute.
Cohabitants who already have some wealth ought always to consider such agreements.
3. How much will the agreements cost me?
The cost of a cohabitation agreement will depend upon the complexity and value of assets and income involved. The basic form may cost in the region of £750 - £1,000 plus vat but could save far more in legal costs avoided at a later date.
A basic trust deed to record respective shares in a property might cost less than £220 plus vat. Again the saving in future legal costs would hopefully cover than cost many times.
