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‘Quickie divorces’ are often spoken about in the media. We also hear a lot about ‘unreasonable behaviour’, ‘irreconcilable differences’ and ‘financial separation’ But what does it all mean? Director Lisa Bell answers your questions to explain this confusing subject…
Sometimes people don’t always appreciate what is involved in the process, and most of the time they have little idea of the legal procedure and requirements. Because it is advisable for divorce and financial settlement to be resolved at the same time, financial settlement usually causes delay to the conclusion of divorce proceedings unless parties can agree between themselves what financial settlement should be with little need for negotiation.
Most delay is caused by either or a combination of (a) court system backlogs even in the most simple and straightforward cases (because an uncontested divorce and financial settlement is all paper-based); (b) by one party holding things up for whatever reason; and/or (c) financial settlement negotiations and disputes.
There is only one ground for divorce and that is the irretrievable breakdown of the marriage. However, to issue divorce proceedings a person applying has to rely upon one of five reasons set out in the law. England has a ‘fault based’ system when applying for divorce. This means that to apply for divorce immediately upon separation a person must rely upon either the other person’s unreasonable behaviour (often mistaken for irreconcilable differences) or adultery.
The alternative to this involves waiting until you have lived separate and apart for 2 years before you can divorce, provided that both parties agree. If both parties don’t agree to divorce after 2 years, then a person must wait for 5 years before they can issue.
People often incorrectly assume that there will be a financial impact if one party has an affair, or left the marriage. In fact, this will rarely make any difference to the overall division of assets. When it comes to money, for the most part the court is not interested in why the marriage ended, but rather what resources each party has and how they can be divided fairly. For a party’s behaviour to have an impact on how finances are divided, there is an incredibly high bar which in the vast majority of cases, will not be reached.
This means, to put it simply, if your spouse commits adultery or behaves unreasonably they will not stand to achieve a less favourable financial outcome because of it. Neither can you expect a more advantages one, simply because of the fact they were adulterous or badly behaved.
England has a reputation around the world for awarding generous pay-outs to the financially weaker party in divorce. This is because 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 also not discriminate between the homemaker and the breadwinner and it is unlikely to gain favour of the court by suggesting 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 of life long or it could lead to a departure from 50/50 on capital assets in the lower earners favour.
The cases that are completed more quickly are when parties are amicable and are able to agree matters between themselves. To assist parties with agreeing their divorce, there is a protocol for sending a draft divorce petition (in most cases) to the other person – or their solicitors – for consideration before it is filed with the court. This is designed to ensure the terms/reasons for the divorce are transparent from the outset and agreed before the legal process actually starts. This helps delays from being encountered later because there is a dispute about the content of a divorce petition.
Also, parties who are well organised, cooperative and proactive in getting their financial settlement terms resolved help to speed up the process. However, there are often complications with parties who appear amicable before taking legal advice – and then realise that there is more to a divorce than what they initially thought or that they might be entitled to something different from what they were initially minded to agree before taking legal advice.
Although this is possible, it is not advisable. This is because a divorce will not extinguish those financial claims arising as a result of your marriage. 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.
Also some people often wish to do this to finalise matters quickly. However, a quickie financial settlement is riddled with risk and should be avoided because there are often complex and life-changing decisions to be made as part of a settlement and it is important that a fully informed decision is made.
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 principles of sharing assets. This means every case is different.
Couples must be married for 1 year before starting divorce proceedings
Be aware of emotional issues. It can take time for some clients to get their head round the fact they are actually divorcing. They should be ready for the fact that their spouse may not be in the right place to be speedy about it 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.
For further information and advice please contact Lisa Bell on 01229 580956.