Common questions on divorce and financial separation

Director and Head of our Family Law Team, Lisa Bell is here to answers your questions and debunk common myths and misconceptions about divorce and financial separation.

Celebrities seem to get ‘quickie divorces’, why can’t I?

A ‘quickie divorce’ is a term often used in the media. However, the divorce process in England and Wales takes roughly 6 months in the simplest of cases. The process involves several stages, each requiring a separate application to the court i.e. submit your divorce application, invite the other side to Acknowledge Service, a Conditional Order being granted by the court and finally, a Final Order for divorce is granted dissolving the marriage. There are some specific time frames which cannot be ignored i.e. a 20 week colling off period from the start of proceedings to the court granting a Conditional Order and a 6 week reflection period between the Conditional Order and applying for the Final Order.

We were only married for 2 years, so she can’t claim anything – right?

While a short marriage might mean a smaller settlement, it doesn’t mean no claims can be made at all. The court will look at the entire financial circumstances, including the period in which a couple may have lived together before marriage (known as cohabitation) contributions made by each party, the needs of the parties and if children are involved, the need for children to be provided for.

The options for people wanting to divorce are limited?

There is only one ground for divorce and that is the irretrievable breakdown of the marriage. On 6th Aril 2022, no fault divorce came into effect in the UK putting an end to the need to attribute blame in the divorce process. Prior to this change in law, it was necessary for someone to say the other had committed adultery or behaved unreasonably if they wanted to divorce immediately and not wait until they had been separated for 2 or 5 years. However, now, the change in legislation simplifies the process and means it is no longer necessary to prove the irretrievable breakdown of your marriage by relying on one of 5 specified reasons.

The courts always favour the financially weaker party?

Judges in England have extremely wide discretion when deciding how assets should be divided upon divorce. The starting point for division is 50/50 but the court is then able to take into account a number of different consideration to decide if 50/50 is fair or should be departed from in either parties favour.
The court will not discriminate between the homemaker and the breadwinner and it is unlikely to gain the favour of a Judge to suggest a party should get more because they earned more money during the marriage. Also, if one party does earn more than the other it could lead to awards of maintenance, either fixed term or life long or it could lead to a departure from 50/50 on capital assets in the lower earners favour.

Can someone issue divorce now and deal with financial settlement later?

Although this is possible, it is not advisable. This is because upon marriage a financial bond is created and this bond does not automatically come to an end upon divorce. Therefore, if after divorce your financial circumstances change i.e. your property increases in value, your savings increase, you inherit or win the lottery, your assets are still subject to a claim from your ex.

Is there a formula to assist clients in working out how assets should be divided?

The court offers some principles so that solicitors can give clients a rough idea of what settlement could be in a particular case, taking into account a couples financial circumstances. However, unfortunately there is no set formula which applies to the division of assets. Instead the law is far more discretionary and is based on what each party needs to live on and the principle of sharing assets. This means every case is different.

Do we have to go to court?

Not necessarily. You can reach a financial agreement through mediation, solicitor negotiation, or even over the kitchen table if you and your ex are amicable. However, no matter how the agreement is reached, you should always ensure the terms of the agreement are formally recorded in a court order and that order is approved by the court within divorce proceedings, otherwise the agreement will not be legally binding or enforceable.

Any top tips for those who may be thinking of divorce proceedings?

• Couples must be married for 1 year before starting divorce proceedings.
• Be aware of emotional issues. It can take time for some parties to get their head round the fact they are actually divorcing. Therefore, a party may have to be ready for the fact that their spouse may not be in the right place emotionally to deal with matters quickly, even when they are keen to get things sorted.
• Above all, take proper advice about the legal process and ask questions to ensure that you understand all the options and implications of your decision-making. There are often various options at various different stages in the divorce and financial settlement process and it is quite easy to get lost within those processes if you are not well informed.