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, Jeremy Tier, Partner and Head of the Family Department at Batt Broadbent, shares his knowledge…
1) I want a divorce. What do I need to consider in respect of… Housing?
The ideal situation would be where both parties could either sell the matrimonial home and share the equity accordingly so that they can respectively re-house themselves. Unfortunately, this is not always practical. Sometimes, one party (especially with children) may remain in the former matrimonial home and the other party takes what is known as a charge on the property. The charge is normally an agreed percentage or a specific figure which that party will receive upon a triggering event (normally the children reaching 18 years old or the party remaining in the house cohabiting/re-marrying)
Sometimes, one party can raise a lump sum to buy the other party out of their share of the house. Obviously, it is important to obtain an agreed valuation for the house and establish how much equity there is in the property. It is always best speaking to an independent financial advisor if you are thinking about re-mortgaging to buy the other party out of their share.
Children/Pets
With regard to children, it is vitally important that children (especially younger children) have contact with both of their parents. More often than not, the divorcing parties can agree on reasonable contact which is often dependent upon the children’s circumstances and the parents’ circumstances. It is also important to work out contact for the children during the school holidays and special occasions such as Christmas, birthdays, mother’s/father’s day.
Pets are often very tricky to deal with upon divorce. Some people agree to share pets and, in fairness, it is rare to rush to court on such matters. That said, you must consider the needs of the pet and who is likely to provide them with the care that they require (especially in the case of a dog or a cat).
Pensions
Similar to other financial assets, the starting point for a pension share is a 50:50 division. Divorcing couples should bear in mind that this division is likely to shift depending upon a number of factors including how long the parties were married, whether or not there was any pension acquired prior to or after the marriage ended and the division of the other matrimonial assets in the divorce. This is not, however, an exhaustive list!
Sometimes, divorcing couples will agree that one party takes a larger share of a particular asset in return for staking a smaller claim upon a pension. This can often be tricky as, despite pensions having cash equivalent values, £1.00 of a pension is rarely worth £1.00 of another asset.
If the pension is substantial and/or a final salary pension (such as a Forces Pension), it is often worth appointing an actuary to calculate an actuarial appropriate share. Although actuaries will provide a very comprehensive report, their services rarely come cheap – a good actuary costs between £1,200 and £1,800. It is, however, worthwhile if both parties are at a stalemate as to an appropriate pension share upon divorce.
2) Why should I use a solicitor to oversee my divorce?
There is no compunction on anybody to use a solicitor to oversee their divorce. Certainly, in recent years, there has been a significant rise in people doing their own divorce. This has also coincided with the demise of legal aid and an increase in the number of litigants-in-person at court.
A good divorce solicitor should be both empathetic and practical. They will appreciate that you are going through a tough time both emotionally and financially. Despite, this, they should be able to offer practical advice to guide you through the divorce in the most cost-effective way possible. The danger of doing your own divorce is that the paperwork can be quite daunting and complex. Mistakes on these forms invariably lead to delay (especially if they are forms that are checked by the court) and, therefore, it is my opinion that a divorce solicitor can save you time, stress, and money.
3) How long does the process take and what can I expect to pay in solicitors’ fees?
Understandably, this is the number one question asked by many clients seeing a solicitor for the first time and it is a very worthwhile question. That said, there is no set time limit for a divorce. Some divorces can be settled within a few months whereas other divorces can take a couple of years. Much of it depends upon the complexity of the matrimonial finances and sorting the arrangements for the children. Arguably, the average length of the divorce process, assuming the matter does not go to court, will take somewhere in the region of six-to-nine months. The cost of the actual divorce should be somewhere in the region of £1,200-£1,500 (including court fees) and the cost of negotiating a financial settlement and drafting a straightforward agreement will probably cost somewhere in the region of £2,000-£3,000.
4) Other than divorce, what options are open to us?
Firstly, you should ask yourself seriously whether or not the marriage can be saved. If so, it is worthwhile considering whether or not your spouse will attend marriage guidance counselling with you.
If the marriage has broken down, some parties consider a simple separation. This will normally involve them reaching an agreement about the children and matrimonial finances and asking a solicitor to prepare a separation deed. Normally, one party or the other may start divorce proceedings after two years or more. This option is ideal if one party or (even both of them) cannot go through the process of divorce so soon after the marriage breakdown.
Another option (although more rarely used) is judicial separation. One party will apply to the court for a decree of judicial separation. It is similar to an informal separation although it puts the separation on a more formal footing. Indeed, it is often used when a married couple may have a religious or moral objection to divorce.