February 7, 2023

What you need to know when considering a divorce or separation

Woman removing her wedding ring

Our specialist Family solicitors have reviewed and answered some commonly asked questions relating to separation and divorce, to help you understand more about the process, financial issues, and property divisions that may arise over the course of a divorce (or separation).

The divorce process

What are the grounds for divorce?

The only ground for divorce since 6 April 2022 is that the marriage has irretrievably broken down. There is no longer a need for any person to allege any fault or any other reasons for the divorce other than the marriage breaking down irretrievably.

How quickly can I get divorced?

The quickest that you are able to get divorced is approximately six and half to seven months from the date of your application.

The reason for this is because the law changed from 6 April 2022, and a no-fault regime is now in place. Therefore once you have made your application for divorce and it has been issued by the Court you then have to wait 20 weeks before you can make the application for the Conditional Order (was Decree Nisi).

Once your Conditional Order has been pronounced you would need to wait a further six weeks before you can apply for the Final Order which is the Order which dissolves your marriage (was Decree Absolute).

How much does divorce cost?

If you are wanting to get divorced there is a Court fee of £593 payable to the Court when making an application for divorce. If you instruct solicitors to assist you with your divorce there is likely to be solicitor’s costs on top of this which would be approximately £400 to £1,000 plus VAT to deal with the divorce only depending on the individual solicitor’s costs.

If you wish to deal with ancillary matters to the divorce, including financial arrangements, then the costs for your solicitor will very much depend on the individual circumstances of the case. The average cost for resolving financial matters is approximately £3,000 to £7,000 if matters are agreed between the parties.

If there are to be Court proceedings costs are likely to be significantly higher.

Do we have to go to Court to get a divorce?

Following a family breakdown, separation or divorce you do not have to go to Court to sort out the practical arrangements following your separation. There are many other methods of resolution available to separating couples to have discussions regarding their separation including mediation, which enables parties to have constructive discussions in front of an independent family mediator who will provide them with a safe space to have these discussions and encourage the parties to reach their own outcome.

Alternatively there is collaborative law, where both parties can instruct collaborative lawyers and sign an agreement not to go to Court and that they are committed to reaching an agreement around a table with their solicitors present.

If people do not wish to attend mediation or collaborative law, solicitors are well used to working with other solicitors to try to assist the parties in reaching an agreement constructively and amicably without resorting to the Court arena.

Even if people cannot reach agreement and feel that they need the assistance of a Judge in Court proceedings, there are still other options available which mean that the parties do not need to make an application to Court to resolve matters. For example there is arbitration where the parties can instruct an arbitrator to make a decision in respect of the finances which is not part of the Court process or alternatively they can attend private financial dispute resolution appointments (FDRs) and instruct a barrister to act as a Judge and provide an indication in relation to financial settlements.

In reality very few family law cases go to a final hearing within Court proceedings and most are able to settle using one of the options described above.

How are finances split in divorce?

Will my husband/wife pay me maintenance following divorce?

Where parties have been married and are looking to get divorced, there may be spousal maintenance that would need to be paid by the higher earning spouse to the lower earning spouse.

The amount of spousal maintenance to be paid would need to be negotiated between the parties, either through solicitors, in mediation, or through other alternative dispute resolution options, as well as for how long the maintenance is paid. There is no law set down to suggest how much spousal maintenance should be paid or for how long, such as there is in child maintenance calculations.

Generally, the Court will consider whether it is possible for the spouses to obtain a clean break which means that neither of them will claim any spousal maintenance against the other. Recent case law has suggested that future earnings are not matrimonial assets and therefore not available for distribution between spouses on a separation and divorce. However, we are able to erode this principle where it is necessary to ensure that one person’s income needs can be met. Therefore if a spouse does not have enough income of their own from all available sources to ensure they are able to meet their reasonable income needs, they can then seek to look to receive spousal maintenance from the higher earning spouse to top up their own income to ensure that they can meet those needs.

Generally, however, the Courts will still expect a spouse receiving maintenance to maximise their income capacity and move forward to financial independence within a reasonable timeframe to achieve an eventual clean break.

Does my husband/wife’s behaviour mean that I will get more money in a divorce?

Behaviour, often referred to as conduct, can be taken into account when looking at the division of the assets and money on a divorce. However, conduct is only taken into account in very rare circumstances that will usually include conduct relating to financial conduct that has meant the behaviour has had a direct impact on the finances available for distribution between the parties, for example where one party has sought to dissipate or spend certain assets or money but has meant that they are not available for sharing with the other party and that they have done that deliberately.

Extreme cases of violence that have resulted in the victim’s earning capacity being affected, due to injuries they have received, can also be taken into account.

However, bad behaviour or conduct is not generally taken into account when looking at the division of the assets on a separation, particularly bad behaviour that has led to the breakdown of the marriage.

Therefore, generally where a spouse has behaved badly towards another spouse, that spouse is not going to receive more money, simply due to the behaviour, unless there has been a financial element to the behaviour.

Is my husband/wife entitled to half my pension when divorcing?

When people divorce they will often need to consider financial matters following their divorce. Financial claims break into three areas which are:

  1. Income
  2. Capital
  3. Pensions

Your solicitor will need to consider with you all three areas and consider an appropriate split across the areas to ensure that you are able to live separately and apart and independently from each other as possible.

In relation to pensions, a spouse is not automatically entitled to half of your pension, however, pension assets will be considered as part of a matrimonial settlement. Pensions can be dealt with in a number of ways including offsetting which means that a spouse can maintain their pension in its entirety on the basis that the other spouse receives a higher proportion of the capital for example.

Alternatively there can be a Pension Sharing Order which would provide for the larger pension to be shared with the spouse who has the smaller pension to provide equality of incomes on retirement or equality of the capital values of the pensions whichever is considered the most appropriate. It may be appropriate in some cases for each spouse to retain their own pension provisions but much will depend on the age of the parties, the amount of pension accrued and the length of the marriage, as well as other factors that will be taken into account when looking at whether it is appropriate for there to be a share of the pensions between the spouses.

Will a prenuptial agreement protect my assets?

Prenuptial agreements are not 100% binding in England and Wales and therefore the Court retains ultimate discretion when looking at the matrimonial finances following a divorce.

However following a case known as Radmacher in 2010, the Courts are becoming increasingly willing to hold people to prenuptial agreements that have been entered into appropriately and with certain requirements being met. The Courts consider that couples should have the power to decide their own financial arrangements but are not able to contract out of their responsibilities to meet each other’s financial needs or the children.

The Law Commission also produced a report, Matrimonial Property Needs and Agreements, that set out their recommendations in relation to qualifying nuptial agreements and provided they adhere to certain criteria they could be enforceable as a contract under English law.

In order for a prenuptial agreement to be considered a qualifying nuptial agreement it must:

  1. be contractually valid on traditional principles so it must be free of any undue influence or misrepresentation.
  2. be made by deed.
  3. contain a statement signed by both parties confirming that they understand the agreement is a qualifying nuptial agreement and they understand the implications of entering into the agreement and the impact that would have on the Court’s discretion.
  4. not be made within 28 days immediately before the wedding or civil partnership.

In addition, the Law Commission recommended that anyone entering into a qualifying nuptial agreement should have received financial disclosure in relation to each other’s financial situation and independent legal advice.

Prenuptial agreements that do adhere to this criteria and are considered qualifying nuptial agreements are a sensible way to seek to protect your assets in the event of any divorce or separation. It allows people to contract with each other as to what they consider would be non matrimonial assets and therefore outside the scope of sharing if they were to separate. However it would never be considered fair or reasonable for the outcome of any prenuptial agreement to leave one person unable to meet their basic needs or the needs of any child.

What happens to property when you separate?

Does my partner have an interest in my house?

Where couples are not married but have been living together as co-habitants for a period of time, people often consider whether they may attain interest in the property that they are living in with their partner. Where couples are not married, they do not have the benefit of looking to the Matrimonial Causes Act to deal with distribution of the assets between. Instead, couples need to look at Land Law and Trust Law principles when establishing if there is any interest in the property. If you have co-habitants who are living in a property that is owned in one of their names only, the starting point is that the co-habitant that is not named on the Deeds does not have an interest in that property as the Deed sets out the ownership of that property expressly.

However, there are occasions where the co-habitant who is not named on the Deeds can assert an interest in the property by relying on Trust principles. For example, if the co-habitant that is not named on the Deeds is able to show that there was a common intention between them both that the co-habitant not named on the Deeds would have an interest in the property, for example if they had discussions that clearly show that the intention was that that was to be a family home and that they would live in it together and that it was for both of them, and that co-habitant relied on that intention to their detriment, perhaps by expending significant sums of money on the property or giving up rights in another property that they had owned to live in the property, then they may be able to establish an interest in the property by way of a Constructive Trust. For a Constructive Trust to be established, the co-habitant would need to be able to demonstrate the common intention and reliance on this common intention to their detriment.

It may also be possible for a co-habitant not named on a property to rely on proprietary estoppel to assert an interest in the property. Proprietary estoppel will apply where it would be inequitable for that co-habitant not to have an interest in the property. Trust principles and proprietary estoppel principles are relatively complex areas of the law and it would be advisable to seek advice from a solicitor if anyone feels that they may have an interest in the property that is not owned in their name.

How do we split the home after a separation or divorce – do we have to sell?

It is very common for the principal asset of a marriage to be the family home, where the parties have resided during their marriage. It is natural that there are often some concerns around how the family home is to be dealt with following a separation between the parties. If a couple that are separating have been married and are looking to divorce then the family home would form part of any potential settlement.

It is not automatically assumed that the house would have to be sold and it would depend very much on the circumstances of the parties of any particular case. It may be appropriate that the family home is retained to ensure the housing needs of children are met whilst they are under 18 and for the property to be sold at a later date. If there is enough equity in the family home to ensure that both spouses are able to rehouse, should the property be sold, then it may be appropriate that the property is sold to release that equity to allow the parties to live separately and apart.

The amount each party would receive on the sale of the property would need to be discussed and negotiated between the parties and would depend on various factors including the length of the marriage, the age of the parties, the income of the parties and the mortgage capacities as the amount that each party receives would need to be enough to ensure that they were able to meet their housing needs coupled with any mortgage capacity that they may have.

If the parties are not married but are separating following a relationship where they own property, they will not be able to rely on the Matrimonial Causes Act to deal with their respective shares in the property and there is no discretion as to how to split the equity in the property. Instead the parties would need to consider the Title Deeds to the property and who owns it. If the property is owned in joint names then it is likely that the ownership of the property is also joint. If the property is owned in one party’s name and not the other then it may be possible for the person not named on the Deeds to obtain an interest in the property under some Trust principles. Trust Law is a complex area of the law and it is suggested that you would need legal advice if you were wishing to assert an interest in a property that is not owned in your name.

Have more questions about separation & divorce?

Contact our specialist Family team to find out whether they can help you with any legal issues relating to a separation or divorce.

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