This article refers to divorce law as it applies in England and Wales.
Apart from all the emotional turmoil, there are so many practical matters that must be sorted out when a married relationship comes to an end. If you and your partner find yourselves in the unfortunate situation where you have decided to separate, you will both need to consider what will happen to your money, investments, possessions, property and children.
There are lots of different ways in which you can make arrangements to part ways. For a start, you don’t need to get a divorce. If you and your partner can agree amicably on how to settle the things that you shared during your marriage, you may just opt for an informal separation. It’s much cheaper and much less stressful than going through the divorce courts. However, bear in mind that any informal arrangements may affect any decisions made by the courts if you decide to take your case down this route in the future. Also, a court may reverse or alter any arrangement you have made with your partner if it is considered unreasonable to either party or unfair on any children.
An alternative way to split without going through the divorce courts is formal separation, in which a written mutual agreement is drawn up, preferably by a solicitor. The agreement sets out the terms for settling financial and material matters and arranging the care of any children. It can cover financial maintenance either for the other partner or for the children. Any agreement not to take a case to court in the future will not be legally binding and both of you still have recourse to the courts should amicable communication break down.
There are various other factors to weigh up when considering whether divorce is the right option. Remaining married will have various legal implications, and of course you won’t be able to remarry. Divorce is therefore often the safest, fairest and most practical option.
Let’s straighten out a few facts about divorce, as it can cause confusion to many people:
To apply for a divorce, you must have been married for at least one year.
Your marriage must be legally recognised in the UK and you must have been resident here for a certain length of time.
One partner must file a petition at court setting out the reasons for the divorce and providing background information. They are known as the petitioner and the other partner is known as the respondent.
The petitioner must provide grounds to show that the marriage has broken down irretrievably. To demonstrate an irretrievable breakdown of the marriage, at least one of the following factors must be proven:
adultery
unreasonable behaviour (such as physical, mental or emotional abuse, or controlling behaviour)
one partner deserted the marriage at least two years ago (left the marital home without the consent of the other partner or reasonable justification for doing so)
where both parties consent to the divorce, at least two years of living apart
where one party does not consent to the divorce, at least five years of living apart
Where both parties consent to the divorce, it’s known as an undefended divorce. Where one party doesn’t consent, it’s referred to as a defended divorce.
If you file for divorce on grounds of adultery, the court will need to know the details of the extramarital relationship, including dates – you must file for divorce within six months of it taking place. However, if one party doesn’t agree to the divorce, proof of the adultery must be obtained, which isn’t always easy.
If you both consent to the divorce, the court will review the application and issue a decree nisi. This can take up to six months, or longer if there are children as the court will want to ensure that the care arrangements made for them are adequate. A court hearing won’t be required, but the court may want to speak to the children if they are old enough.
Six weeks after obtaining the decree nisi, the petitioner can apply for a decree absolute to finalise the divorce. Once the decree absolute has been granted, the divorce is complete and the marriage is over.
If one partner does not agree to the divorce, attendance at court will be required. The partner who disagrees must provide reasons to demonstrate why they believe the marriage has not broken down irretrievably. The judge will decide whether the marriage has broken down irretrievably and will grant a decree nisi if they deem this to be the case. Then the petitioner can apply for a decree absolute in the same way as they would had the other partner consented to the divorce.
If there are any children in the marriage, the court will always review the arrangements for their care. This includes where they will live, who will look after them, what access both parents will have and what financial support will be given. The court will always make its decision based on what is deemed to be in the best interests of the children. If both partners agree with the arrangements they have made, the court will not intervene to change them. However, if one partner finds the arrangements unacceptable, the court will review the case and make a decision, known as a court order. Financial arrangements – children
Both partners are financially responsible for their children, no matter who the children live with. (Children under the age of 16 or under the age of 19 and in full-time education are considered to be your dependants.)
The most amicable way to arrange support is through a voluntary agreement, where you and your partner come to a mutually acceptable arrangement for looking after the children. This may be an informal verbal arrangement or you could have a written agreement drawn up by a solicitor (which is the safest option as it can help to resolve any disputes further down the line). There are various ways in which one partner can provide financial support to the other. They may agree to pay all the household bills and perhaps the mortgage or rent, they may buy the childrens’ clothes or pay for their holidays, or they may prefer to give the other partner a regular maintenance payment for their partner to spend appropriately on the children.
If you’re unable to come to an informal arrangement with your partner, you’ll need to apply for financial support through either the Child Support Agency or the court.
Financial arrangements – settlements for the other partner
Even if there are no children in the marriage, making a financial settlement can be tricky business. If you are able to come to an informal agreement together on how you will split your wealth, it can save a lot of time, stress and money. However as with everything in life, when there’s money involved, disputes inevitably arise. Many divorcing couples therefore end up turning to the court to obtain a financial settlement. In England and Wales, the general principle concerning disputed settlements is that both partners should receive 50% of their combined wealth. There are sometimes extenuating circumstances though, particularly in cases where a large amount of wealth was accumulated by one partner before the marriage, or where one partner has, for example, given up a career as a result of the marriage or of having children. In such cases the split may not be completely equal.
Financial arrangements – property
Again, you may come to an informal agreement as to what to do about the marital home, or, if you can’t agree, the courts will decide. One partner may still be living in the property, but this does not give them any more rights than the other partner. The partner who is no longer living in the home still has the right to come back to collect items belonging to them (although in cases of domestic violence this may be restricted by a court order), and still has a say in what happens to the home – their consent will be required to put it up for sale, for example. Even if one partner isn’t listed on the deeds as an owner of the marital home, they nevertheless have equal rights to the property – either to live in it or to have a say in whether it is sold. However, to protect their rights, this partner must complete a form and send it to the District Land Registry.
A final word of advice
In an ideal world, it’s always best to be able to agree things amicably without the indignity of involving solicitors or going to court. In reality, however, it’s not always easy to reach a fair and reasonable agreement – and even if you do, things might turn sour at some point in the future and either one of you could be left in the lurch. It’s therefore best to consult a solicitor to ensure you understand your rights and what you’re entitled to, and to help you reach an arrangement with your partner that will allow you both to live reasonably and comfortably when you separate.
Source: http://www.ArticlePros.com/author.php?Benedict Rohan
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