The breakup of a marriage is naturally a stressful time which can have far-reaching impacts. We asked a panel of expert family lawyers about the separation process and the alternative options to divorce. Here, Jill Cameron, Solicitor at Scotts Wright Solicitors, shares her knowledge…
1) I want a divorce. What do I need to consider in respect of… Housing?
Your children will probably want to be able to stay in their own home, to keep their own bedrooms and be surrounded by their familiar things. Have a discussion with your spouse to see if it is feasible for the parent who is to have primary care of the children to remain in the matrimonial home. The Court puts the interests of any minor child over and above all else, when considering what the financial arrangements should be on divorce and keen for the children of the family to have as little disruption as possible. Consider whether the parent with primary care of the children can afford to meet the mortgage repayments/rent, perhaps with the help of maintenance from the other spouse and whatever state benefits may be available to him/her. If you and your spouse can’t reach agreement on this, then your Solicitor can advise you on what steps you need to take to secure your accommodation, and that of your children.
Don’t forget, however, that the spouse who is leaving the home needs to have a property of his/her own, which can facilitate regular contact – including overnight contact if that is appropriate- with the children.
As parents, you will obviously be concerned to ensure that disruption and upset is kept to a minimum for your children. Talk to your spouse and try, wherever possible, to reach an amicable arrangement that puts the needs of your children first. Is it possible to put in place, and would the children benefit, from a shared care arrangement, where they spend, for example, one week with one parent and another week with the other? If that isn’t possible (and don’t forget that children have different needs at different times in their lives- what’s suitable for a teenager, won’t necessarily be right for a four or five year old), then try to come to an arrangement where the children have regular contact with the parent with whom they don’t live. Don’t forget to include other significant people in this contact – grandparents, cousins, favourite aunts and uncles etc.
You may want to consider using a parenting plan, which you can get from CAFCASS, and you may find it useful to look at the website run by CAFCASS – www.cafcass.gov.uk – for some helpful tips as to how to minimise the disruption for children when their parents are separating.
If you’re finding it difficult to come to an amicable arrangement, then think about mediation as an alternative to Court proceedings- indeed, in almost all circumstances, parents are obliged to try mediation before going to Court if they can’t reach agreement about their children, post separation.
Your Solicitor will be able to advise on the best way forward, in terms of resolving your difficulties in a way that minimises stress and unpleasantness for you and your family.
Don’t forget that children will have financial needs too. Again, try to sort out child maintenance amicably, but if can’t, then you can use the Child Maintenance Service to set an appropriate level. And make sure that you look at what state benefits options may be available to you, for yourself and your children.
Children will get upset if they are separated from their pets. Is it possible for the pet to “move with” the child if he or she is leaving the family home and perhaps to move with the child when he or she has contact with the other parent?. If not, make sure that the child knows that just because he isn’t living in the same house as the dog or cat, it doesn’t mean that he won’t get to see that pet anymore, he’ll be able to have as much fun with his pet on contact times as he did when they lived in the same house.
Pensions can be a major asset within a marriage, possibly as valuable as the equity in your home. There may be a discrepancy in the pensions available to each spouse and, in this case, there are options available in terms of orders that the Court can make- such as a Pension Sharing Order (whereby the pension share awarded is payable for life, even if the spouse in receipt of the pension share re-marries) or a Pension Attachment Order (where the periodical payments, or maintenance element, will stop on re-marriage, but, during payment, is capable of being varied).
Don’t forget to consider your state pension when making decisions about pensions. You can get a state pension forecast at www.gov.uk/check-state-pension
You could also consider pension offsetting. This isn’t widely used, and involves the spouse with the larger pension keeping the pension intact, with the other spouse getting a larger share of other matrimonial assets by way of compensation.
Pensions are rather unique assets and it can be quite daunting having to consider them. A Solicitor will be able to give you expert advice as to how to get the best for you and your family.
Make sure that you have attended to things such as the utility bills for the home- get them changed into the sole name of the spouse who is staying in the home. If you have any joint bank accounts, decide what is going to happen to them- are they to be closed or is one spouse taking them over? Do you have any joint liabilities- a joint personal loan or credit card?- if so, again, what are you going to do with these, is one party taking over the debt or are you going to continue to repay it jointly? There is also the mortgage on the house to consider- if you are selling the home, then it will normally be repaid in full (unless you’re in a negative equity situation). If one spouse is staying in the house and the other is leaving, will the one who is staying be taking out a new mortgage in their sole name to repay the one in joint names? Remember to keep all financial institutions advised of any change in your circumstances and to take advice from your solicitor.
2) Why should I use a solicitor to oversee my divorce?
A solicitor will make your divorce as uncomplicated and stress free as possible. It isn’t always easy, if you don’t have the relevant legal expertise, to know whether, for example, you have chosen the right “fact” upon which to base your claim for divorce and what information the Court needs in the petition. Your solicitor will be able to give you advice on this and draft the petition in a way which balances the need to show that you are entitled to a divorce, yet is as uncontroversial as possible, in order minimise any antagonism between you and your spouse.
Difficulties can occur within the divorce process. You may not know your spouse’s full address, for example, or he or she may decline to cooperate with the divorce process. Your solicitor can help you through these steps and overcome these difficulties relatively quickly and simply.
Overall, your solicitor will take the emotional element out of the divorce for you, acting as a buffer between yourself and your spouse, thus ensuring that acrimony is minimised.
3) How long does the process take and what can I expect to pay in solicitors’ fees?
As a guideline, if your divorce is straight forward, in that the other party doesn’t seek to defend it, there are no difficulties with regard to serving the documents on the other party, and the other party cooperates and returns all necessary documents to court in a timely fashion, then you can expect your divorce to take between 3 to 5 months, depending upon the work load at the Court dealing with your divorce petition.
Please remember that it may not actually be prudent for you to apply for your decree absolute at the time when it is due. Your solicitor will be able to advise you whether it is appropriate, given your particular circumstances, to do so.
If your spouse chooses to defend your divorce petition, then the guidelines above won’t apply, and you can expect your divorce to take considerably longer. You will probably need expert legal advice and representation from a solicitor to deal with this.
In respect of your solicitor’s fees, all solicitors will take care to ensure that their fees are explained to you at the outset of your case so that you know exactly what to expect. Many solicitors will work on the basis of a fixed fee but if they don’t, much will depend on their individual charging rates and their estimate of how much work is involved in your particular divorce. On a straight forward divorce, you could expect to pay between £800.00 and £1000.00 plus VAT plus the Court fee (unless you are entitled to a remission or exemption of the Court fee).
If your divorce is defended, then, unfortunately, your costs will be significantly higher, and, once again, your solicitor will do his or her best to ensure that you are advised as to the likely total costs at the outset of your case, and are kept fully appraised, as your case progresses, as to the costs you have incurred.
4) Other than divorce, what options are open to us?
There are a number of options open to you, which could be summarised as follows:
1. You could simply separate, and do nothing further. This isn’t an option that most solicitors recommend, as it gives you no certainty and finality in terms of what you and your spouse intend to do about your marriage and there is no regularisation of your financial affairs.
2. You and your spouse could enter into a Separation agreement (sometimes called a Separation Deed). Ideally, both of you should be represented by an independent solicitor and there will need to be a measure of agreement between yourself and your spouse as to what is included in the document. It can regulate and detail the arrangements you want to put in place relating to your children, ownership and occupation of the marital home, what you want to do in relation to other financial assets and whether or not any maintenance is paid from one spouse to the other or in relation to the children. The document can also record whether or not you intend to divorce and if so, when, and will usually include an intention to obtain an Order of the Court, dealt with by consent, turning the financial arrangements in the document into a binding Court Order. A word of warning here – whilst separation deeds are becoming more common, Courts aren’t necessarily bound to follow the terms of the Separation Deed with regard to financial arrangements, and a judge can depart from those terms if he or she feels that the circumstances justify him doing so.
3. Yourself and your spouse could apply for a Judicial Separation. This is similar to a divorce, in that there is Court involvement, but it is particularly useful if one party to the marriage has particularly strong moral objections to getting divorce. A Judicial Separation will recognise that your marriage has broken down, and release you both from your duty to live together, but it will not dissolve the marriage. As with a divorce, either party can ask the Court to make orders in relation to financial matters such as maintenance, property, lump sum and orders in relation to pensions.
To get the best advice as to which of these options would work best for you and your family, speak to your solicitor.