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, Alexander David, Partner and Head of Family Law at Awdry Bailey & Douglas, shares his knowledge…
1) I want a divorce. What do I need to consider in respect of… Housing?
One of the most important issues to be resolved is housing; certainty is what people want. If the parties are currently living in married quarters, and the party who is eligible moves into the Mess, then it will probably be the case that the other party has to move out within a relatively short time scale. This can be distressing and it is important that advice is sought without delay if there has been a separation.
In terms of private housing, the details of the mortgage raising capacity, if any, of both parties is key as well as confirming what type of housing is required to meet both parties needs moving forward. Who is to be the primary carer for any children can be a decisive factor as the law confirms that the needs of children are more important than any other factor. The Court can order that a property be sold or for a property, to include the family home to be transferred to one of the parties. If there is a mortgage, then it needs to be paid and the Court may order one party to pay money on a monthly basis to the other to assist with meeting the payments. The mortgage company may also agree to a payment holiday.
It is hoped that the parties will be able to agree arrangements between themselves. Unless there is a seriously good reason to the contrary, the law concludes that it is in the best interests of children to have a loving and meaningful relationship with both parents following separation.
The parties need to consider how to facilitate overnight contact if one of the parties is living in Mess accommodation or how contact can be facilitated if one party is living overseas.
Who is going to be the primary carer for any relevant children on a daily basis or is a shared care arrangement practical and viable? Current and future schooling needs are an important consideration and both parties are on an equal footing when considering such matters if they have parental responsibility.
The primary carer should be entitled to child maintenance from the other party and the amount needs to be determined.
The court can make a Pension Sharing Order in one of the parties’ favour and the starting point is that there should be equality of pension provision. A party can argue that pension accrued pre-marriage and post-separation should be disregarded – this is a grey area of law and each case depends on its own facts. Death in service benefits can be a factor and there may also be gratuity payments which need to be considered.
An overall agreement needs to be reached which should set out what is going to happen to the family home and how the other assets of the marriage are to be divided between the parties to include pensions. It may also be fair for one party to pay the other spousal maintenance; if so the amount and for how long needs to considered. The agreement should be embodied in a Court Consent Order, which provides certainty moving forward. A Divorce does not end financial ties; claims can remain open long after a divorce if a Consent Order is not obtained. The parties do not need to attend Court in the vast majority of circumstances.
Pets become part of the family and it can be a difficult topic to resolve upon a separation. Who can provide proper care for the pets? Is one of the parties away regularly? If there is a rental property, is there a restriction on having pets? These are just some of the questions which need to be considered.
2) Why should I use a solicitor to oversee my divorce?
Yes you should – but I would say this, wouldn’t I? In all seriousness, in my experience more money and time can be spent in trying to correct errors if legal advice has not been sought. Getting divorced is a major event in anyone’s life and it is in both parties interest if they are separately represented with a view to ensuring that a fair outcome is achieved. If a divorce petition is incorrectly completed it can stop a party making essential financial claims.
3) How long does the process take and what can I expect to pay in solicitors’ fees?
Usually, a divorce can take between four and six months. However, the process can take longer when negotiating a financial settlement. The attitude and reasonableness of both parties is a decisive factor in terms of timescales.
4) Other than divorce, what options are open to us?
I always say that a Divorce is a last resort. I would recommend marriage counselling to see if differences can be worked out. If separation is inevitable, but the parties are not ready to divorce, be it for emotional reasons or otherwise, then a separation agreement is another option. However, separation agreements are not as certain as Court Orders and it is not possible to formally share a pension in the absence of a Divorce and Consent Order.