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, Katie Raybould, Solicitor at Wansbroughs Solicitors, shares her knowledge…
1) I want a divorce. What do I need to consider in respect of… Housing?
There are many aspects of housing to consider when contemplating a divorce including:
Value of the Family Home: In the first instance, if you are a home owner it is a good idea to get a couple of initial market appraisals (these are often free) so that you have a good idea about the value of your property/properties. If there is a mortgage(s) or other charges against the property ask for a mortgage (or loan) redemption statement so that you know how much equity is in the property. This will form part of the parties’ financial disclosure.
Whose name is the Family Home in? If the Family Home is in your spouse’s sole name, you need to consider registering your Home Rights immediately – it is a free application to the Land Registry. This will prevent your spouse taking further borrowing on the property or selling it without your knowledge.
Domestic Abuse: If you are suffering domestic abuse in the relationship and your spouse is refusing to leave the home, you need to consider whether to make an application to the Court for a Non-Molestation Order and an Occupation Order. In these circumstances the Court has the ability to keep the abusive spouse away from the property even if the property is not in your name. This is not a permanent Order and the situation may be changed later during matrimonial proceedings however it is something to consider in the first instance.
Transfer of Equity or House Sale? You need to consider whether one of you is going to stay in the house or whether the property is to be sold and the equity split between the parties. If you are intending to stay in the house by having it transferred into your name and if there is a mortgage on the property you need to consider whether the lender will consent to the transfer. Alternatively, you need to find out if you are able to re-mortgage in your sole name.
What if you can’t agree? If you cannot reach an agreement when considering ‘who gets the house’ or how much equity each person gets or who gets to stay in the rented accommodation then the Court can make Orders to say who get’s what. To do this, the Court considers all aspects of each individual case with an aim that both parties housing needs are met where possible giving priority to any Children’s housing needs.
There may be more issues you need to consider that are specific to your individual situation and so you should always consider seeing a Solicitor straight away.
Children: Divorce is always going to impact upon the Children and it is extremely important to try and minimise the negative impact on them. When contemplating Divorce and the Financial Matters each party should always aim to put the welfare of the Children first. This is certainly the Court’s priority when making any decisions about the Finances.
Where will the Children live? When contemplating Divorce, ideally and where possible you need to decide which parent the Children will live with and how much time they will spend with the other parent. Each parent may wish to consider having ‘shared care’ where the Children live with both parents.
Child Maintenance: You should always consider agreeing this between both parties as this is the most amicable way but if you are unable to reach an agreement the Child Maintenance Service will carry out an assessment and determine the amount to be paid.
If parents can’t agree: If there is a dispute about the arrangements for the Children, the parents would first have to consider family mediation. If mediation is not successful (or not appropriate), the parent will make a separate Children Act application to Court (outside of the Divorce and Financial Matters). Children issues should always be kept separate from disputes about Finances. Often, the Court is not able to make a decision about the Finances until the issue as to where the Children will be living has been resolved.
As mentioned above, the Court gives priority to the welfare of the Children, especially in respect of housing.
Pets: You need to consider where they are going to live, if this cannot be decided it can form part of the financial negotiations. If Financial Court proceedings are issued then the Court will consider the pets as part of the matrimonial assets and make the decision as to who gets what pet.
In the first instance, both parties will need to obtain the Cash Equivalent values (CE values) from the pension provider. This can be done by contacting the policy provider and explain you need a valuation for Divorce purposes. This information will form part of your financial disclosure.
The Court has the power to make several different Orders in relation to Pensions, the most common of these is a Pension Sharing Order. When deciding what type of Pension share should take place, the Court would look at all aspects of the individual case, applying the ’Section 25 Factors’ set out below.
In some cases, one spouse may have built up a valuable pension whilst the other has not, perhaps because they were at home caring for the children while the other spouse worked. The Court views contributions of money through work and contributions by caring for the Children as equal and so it may look to equalise pensions especially where there is a long marriage. This is not always the case, but one example of the Court’s powers and their approach.
If you want a Divorce, you need to consider all the financial matters in relation to the Divorce. These can be generally referred to as Capital, Income and Pensions. You will need to consider what are the matrimonial assets and liabilities and how these are going to be dealt with. When considering finances on Divorce the Court looks at what’s called the section 25 factors (taken from section 25 Matrimonial Causes Act).
The section 25 factors can be summarised as follows:
- The capital and income resources available to the parties, either existing or reasonably foreseeable.
- Details of the financial needs of the parties, including:
- their standard of living;
- their ages and the length of the marriage; and
- any disabilities.
- The court also considers the following additional factors:
- the respective contributions of each party;
- the conduct of each party (although only in exceptional cases); and
- any benefit either party will lose as a result of the divorce (such as a spouse’s pension).
2) Why should I use a solicitor to oversee my divorce?
There are two main aspects to a Divorce, there is the Divorce process itself and there are the associated financial matters. The Divorce process is not overly complicated however even after the Divorce is finalised either party could make a financial claim against their ex-spouse at any time in the future. The only way to achieve any finality in the finances is by an Order of the Court. There is no set formula for calculating a financial settlement on divorce – the court has to consider all the circumstances in each individual case.
When considering the above section 25 factors, different judges may reach a range of different solutions on identical facts all of which would be within their judicial discretion. There is case law however that has established the approach the court should take which is why it is important to always seek independent advice from a Solicitor specialising in Family Law. If you do not use a Solicitor you can run the risk of agreeing to something that is not in your best interests. Alternatively if you are the party with the greater financial resources, you may be agreeing to something that may leave you vulnerable to further claims, should the finances not be dealt with properly.
3) How long does the process take and what can I expect to pay in solicitors’ fees?
These two are the most frequently asked questions at the start of a Divorce and associated Financial Matters. The Divorce process itself an average can take around 4 to 6 months but only if it is straight-forward. It can take longer than this if there are complications. It is usually advisable to wait until you have a financial settlement before taking the final step which is to apply for Decree Absolute. . The Court fee for a Divorce at the moment is £550 and if you have a solicitor representing you, you will have their fees on top of that which can vary.
Financial Matters basically take as long as they need to – if matters are agreed relatively quickly, then a Solicitor can draft the Financial Order and send this to the Court as soon as the Divorce reaches Decree Nisi stage and so the financial matters may also be concluded within the 4 to 6 months however, more often than not, the Financial Matters can take much longer. In cases that involve complex finances and/or the parties simply cannot agree matters then the time estimate will run to years rather than months. However it really depends on the individual case and more often than not it is very hard to provide a time estimate from the outset because it depends on the approach of the parties. If one spouse is particularly difficult, then it will take much longer to reach a conclusion.
4) Other than divorce, what options are open to us?
Judicial Separation: If you are married, and you wish to separate but you do not want to Divorce, you may wish to consider a Judicial Separation. You can still resolve most of the financial matters in the same way as a Divorce – you remain married but legally separated.
Separation Agreement: If you do not intend to Divorce or consider Judicial Separation you may wish to make your financial arrangements formal by entering into a Separation Agreement. These are not binding in the same way as an Order from the Court and either party could still start Divorce proceedings and make an application to Court to commence Financial Proceedings but they can be a useful way of documenting what the parties have agreed.
Marriage Counselling: If the relationship is on the rocks then marriage counselling can help couples work to save their marriages. If counselling does not help, the mediation process is available to help couples work out a way to achieve an amicable separation/divorce.
The above is not a substitute for legal advice and if you are considering separation you should go see a Solicitor. At Wansbroughs, we provide friendly, supportive and expert legal advice to help our clients try to resolve their difficulties. We offer advice on all family matters and provide all clients with an initial free half hour appointment within which we can discuss what options are available to you and how best to proceed. For further details please visit our website, www.wansbroughs.com, or if you would prefer to email, email@example.com or if you want to speak to a member of the team please call on 01380 733371.