What Everyone Should Know About Getting A Divorce | sheerluxe.com
With all the goodwill and help in the world, sometimes a marriage just breaks down. And while you might have loved them once, divorce can be a complicated and expensive thing. We asked divorce lawyer Antonia Felix from leading firm Mishcon de Reya what her advice would be for couples going through it...
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At what point should you first see a solicitor?

Ideally, see a solicitor when you are first thinking of separating. It doesn’t mean you need to proceed, but it will act as a ‘fact finding’ process so you can work out where you stand. At this stage, you can also consider attending therapy with your partner (either to work towards reconciling or to help you disengage from the relationship). Some people are nervous to see a solicitor because it makes it feel too real. But leaving it until you have decided to divorce could mean your options are less clear. For example, it might turn out you have little access to funds or no idea about your partner's financial position. Remember you can always instruct a solicitor and not take the divorce forward. If you need to move quickly, it’s good to have gone through the practicalities of engaging a solicitor so they’re ready to go.

What are the main grounds for a divorce?

You cannot get divorced until you have been married for a year, and you also need to prove that the marriage has irretrievably broken down. To do this, you’ll need to give one or more of the following reasons, known as ‘facts’:

 - Adultery: If either person had sexual intercourse with someone else of the opposite sex, this is known as committed adultery. You cannot give adultery as a reason if you lived together as a couple for more than six months after you found out about the affair.

- Unreasonable behaviour: This applies if either person has behaved in such a way so that the other cannot reasonably be expected to live with them. This could include physical violence, verbal abuse such as insults or threats, drunkenness or drug taking or even financial control.

- Desertion: If your spouse has left you for at least two years before you apply for divorce you can claim desertion. You can still claim this if you have lived together for up to a total of six months in this period.

- Separation: This applies if you have been separated for two years and you both agree to proceed with a divorce. If you have been separated for at least five years before applying, you can proceed even if your husband or wife disagrees. 

Do you always need a solicitor if you want a divorce or are there other options?

In most cases, it’s less stressful and better to instruct a solicitor. However, you can act for yourself as a ‘litigant in person’ (where you represent yourself in court and on paper). You can access all the main forms online, fill them in and lodge them at court either by hand or electronically. If you can’t afford legal advice or support in court, you could pursue legal aid, which covers several family issues. You can find more information on Gov.UK or take advice at your local citizens’ advice bureau.

What is mediation?

Family mediation is where an independent, professionally trained mediator helps you and your separated partner work out an agreement to cover your finances and any child-related matters. You can also seek mediation to assist with some or all of your issues. It’s usually carried out by a family solicitor or a family barrister, and it’s worth noting that if you issue any court applications, the judge expects you to have considered mediation. It can be less stressful, minimise conflict, be less upsetting for children, as well as being quicker and cheaper.

When is mediation not appropriate?

Mediation isn’t appropriate if one party doesn’t intend to properly engage or if there is so much animosity that the parties don’t trust each other. Don’t go down this route if one person feels scared or bullied by the other, either. It needs careful consideration, and bear in mind that you could need at least two or three sessions to make progress. Remember that an agreement reached through mediation is not binding, although it can be enshrined by a court order to make it enforceable.

What should you ask at an initial meeting with your solicitor?

It is useful to know about your own financial circumstances and to come prepared with the facts, the key dates in your relationship and any relevant figures. For example, do you have a pension and what is its value? Did you purchase a home with your partner and if so, when and for how much and what is the value of your mortgage? Having this information to hand makes the first meeting more effective. You should also ask for practical advice, such as how to protect any monies held in a joint account or how to manage shared living arrangements. Family law is not a science and is highly discretionary, so the first meeting is usually to obtain the key facts before getting an overview of how long the solicitor thinks your divorce/separation will take, the costs involved and the likely outcome. That said, they may need more information from your spouse to understand the whole financial picture.

How much does it cost to get divorced?

It depends how much money you have between you, if your financial position is complicated or if the assets such as the family home need to be sold. If you settle early on without court proceedings, it can be anything from £2,000 to £30,000 (depending on your income and financial circumstances). If you litigate to a final hearing, which can take 12-18 months, it can be anything from tens to hundreds of thousands of pounds.

Who is expected to pay the costs?

The general rule is that each person pays their own costs. However, the court does have the power to order one party to pay the costs of the other at any time. The court looks at multiple circumstances to make that decision, including whether a party has succeeded in part of their case, the conduct of parties before, during and after proceedings, whether it was reasonable for a party to make or contest an allegation or issue and the way in which a party made or defended their case.

Is it possible to limit the costs?

You can try to limit costs by reaching an agreement with your partner yourself, attending mediation or by doing some of the ‘legwork’. For example, you can collate your own disclosure or documentation or do some of the administrative tasks yourself. There is also the opportunity to instruct a barrister without going via a solicitor – this is called ‘direct access’.

What is a DIY divorce service and is it safe?

This means doing everything yourself, either online or on paper, without solicitors. It must be remembered that your actual divorce is a paper exercise (with a £550 court fee). The finances are dealt with separately. Therefore, the risk is that you complete your own divorce before you reach a financial deal. It is essential to reach an agreement and have it enshrined in a court order and approved by a court so that it is binding and enforceable. This is harder to do yourself and lots of sites promise “quickie divorces” and “very low costs” but do not assist with the financial element.

How long does the average divorce take?

The divorce process – by which we mean the paper exercise to get your ‘Decree Absolute’ and is the final stage in your divorce – can take four or five months to be processed by the court if both parties file their paperwork on time. It is quite common for parties to go to court, but family lawyers do what they can to avoid this and a high percentage of cases (around 90%) settle during the process.

What's the simplest way to get divorced and split assets?

To sit around the table, go through your assets and liabilities and work out a split between you. Also, attend mediation or some form of family therapy. Then put the agreement in writing and lodge it at court to be approved. This isn’t always as easy as it sounds, and solicitors often need to be involved. Divorce is rarely simple, but it helps to keep the emotions out of the discussion.

How do you know what assets you have a legal right to?

The house: The former matrimonial home is treated differently to other assets. Regardless of who legally owns the property or your individual contributions to the property, if it has been your family home during the marriage, the starting point is a 50:50 split. However, depending on the needs of the parties – and who is looking after the children – more of the value may have to be retained.

Pensions: It depends on the length of marriage, and the circumstances of the case, as to whether there will be a share of the pensions (also known as a pension sharing order). If one party has a big pension pot and the other has very little there is usually a pension sharing order, but it is not always an equal split as it depends on the ages of the parties and the other assets in the case. Pensions are treated differently as, unless you are already drawing down on them, they do not have immediate value.

Other property (cars, jewellery, art etc): Property purchased during the marriage is matrimonial. Therefore, even if a car is not in your name, it may be sold and the proceeds divided as part of a divorce. If you have been gifted or purchased jewellery during the marriage, provided its value isn't so huge that it would impact the division of the matrimonial pot, the general rule is you can keep it. However, you still need to disclose possession and provide an estimated value. All assets and personal possessions need to be considered as part of an overall financial settlement.

Is there any way to protect your assets prior to proceedings?

Don’t do anything which could be seen as an intention to defeat the other party’s financial claims – for example, transferring ownership of an asset to a sibling or a friend. In these circumstances, the court can set this aside as part of financial proceedings. Practically, you can manage your finances by putting limits on credit cards and making sure all joint accounts have joint signatories so one party can’t simply drain it. If you live in a property owned by your spouse, speak to your lawyer about placing a restriction on the title so it can’t be sold without your knowledge. You will not be able to close joint accounts unless agreed, but if you make the bank aware you’re in the middle of divorce proceedings, most will freeze the accounts so it’s harder to withdraw money or make payments. You may also want to consider a post-nuptial agreement which sets out what will happen to your assets if you get divorced. These agreements are highly persuasive, but are only appropriate if you plan to stay together rather than immediately separate.

Will each person be expected to hand over all financial information to the other's lawyers?

Both of you have a duty to give full and frank financial disclosure to each other and the court. This is provided to your ex-spouse's lawyers or directly to them if they are representing themselves. It’s common to provide bank statements going back at least 12 months (sometimes longer if there is good reason) and you will also need to provide your last three months of payslips, along with details of all assets and liabilities in your sole or joint name.

How does the approach to custody change if you feel your spouse can’t take care of the children properly?

The term ‘custody’ no longer exists in the context of family law. The term used instead is children arrangements or time with your children. The ability to care for your own children is looked at carefully during court proceedings. However, there is a huge distinction to be made between working long hours and violence. If there is any risk of harm, then it may be decided that contact between the parent and the children should not take place or only in a supervised contact centre. If a parent works a lot or travels, then an arrangement for contact will need to be considered. The priority of the court is the welfare of the children and what is in their best interest. If there are court proceedings, then a CAFCASS (Children and Family Court Advisory and Support Services) officer will assist the court. They have a helpful website CAFCAS.gov.uk which is a good starting point if you are considering a divorce which involves children.

What should you do if you fear your spouse is hiding assets?

There is a fine line between chasing the ‘hidden pot of gold’ you may never find, and a spouse pretending to be broke but living like a king. During proceedings, both parties have a duty to provide full disclosure to the court and each other. This includes revealing full bank statements, pension values, loans payable by them and owing to them, and property. Ask the right questions to obtain the correct information at the right stage. Look at bank statements carefully – do they show monies coming in and out from another account which is unknown? Is someone withdrawing abnormally large amounts of cash? And find out if there are other valuable items overseas or in storage, such as wine, antiques, investments or interests in land. Finally, think about whether any assets have been undervalued, as a formal valuation may be required. You should also consider a freezing injunction before assets are dispersed.

Do pre-nuptial agreements stand up in court?

Marital agreements (pre-nuptial and post-nuptial) aren’t legally binding in England and Wales, but they are highly persuasive if certain criteria are met. The best way to ensure a marital agreement will be upheld by the English court is to show both parties entered the agreement of their own free will and obtained relevant, independent legal advice. The court then looks at the parties' circumstances at the time of the agreement to ensure they understood the implications, and whether they intended it to be effective. It should also be signed more than 28 days before the wedding.

Lastly, is there a final tip you can shire?

Because it’s an incredibly stressful time and emotions are running high, it is common for people to use their children as pawns in the divorce. Instead, the focus needs to be getting through the process and rebuilding your life rather than blaming each other.

For more advice visit Mishcon.com

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