Divorce Solicitors

Usually, it is sensible to press on with a divorce sooner rather than later, if possible, and sometimes this means relying on adultery or unreasonable behaviour, instead of desertion or separation. If you don’t wish to apply for divorce or have been married less than a year, there may be alternatives you can arrange.

A judicial separation allows you live apart as a result of the grounds listed above, but you do not have to prove the marriage has broken down irretrievably.

Alternatively, you may be able to seek an annulment less than a year into the marriage. However, you have to either prove that the marriage was never legally valid (for example, close relations, underage, already married) or your marriage is defective (for example, it wasn’t consummated, you didn’t consent to the marriage).

Judicial separations and annulments are unusual and only relevant in particular cases. Always take legal advice from a specialist solicitor before embarking on this route as an alternative to divorce.

That’s not to say the emotions portrayed in these dramas – hurt, anger, betrayal, deception, pain, fear – aren’t involved in real life scenarios, as they certainly are. As part of our divorce services, we work with people who are experiencing one of the most traumatic and emotional events of their lives.

This makes it crucial to offer empathetic and strategic legal advice geared to their specific divorce, and ensure they enter the process fully aware of what to expect.

If you have both signed a pre-nuptial agreement prior to the marriage (or indeed a post-nuptial agreement), this can be employed to help guide the division and protect your assets.

In most cases, you will need outside assistance to find common ground when separating your finances, particularly where:

• One or both of you own a business
• One of you is financially dependent on the other
• One of you does not want to divorce
• Your children are financially dependent on you
• Your marriage has lasted over five years
• One of you no longer works to look after your children
• One of you has significantly more assets than the other

These factors, among others, will be deemed by the Court as affecting the balance in your divorce. Discussing these issues with your spouse, with the help of an independent divorce solicitor, can help you organise your financial obligations without relying on the Courts to decide the case for you.

To make your agreement over finances legally binding, including who is entitled to what assets, maintenance payments and splitting investments, a solicitor can draft a Consent Order. This legal document confirms your agreement and ensures no changes are made beyond the dissolution.

The Court can approve your Consent Order as long as you’ve started the divorce process and you’ve obtained your Decree Nisi. You and your husband or wife will then both sign the draft Consent Order and a Statement of Information form, while one of you also needs to fill in a Notice of Application form.

Usually, there is no Court hearing after this, unless the Court determines based on you and your spouse’s finances that this agreement is unfair or particularly complex. In these circumstances, the Judge will query the proposed Consent Order and may fix a Court hearing.

The Court will use the Section 25 factors listed above to determine what they believe is the fairest way of splitting your assets and confirm any lasting payments. They will take into account the arrangements of any children you and your spouse have first and foremost, ensuring their needs are accounted for.

In these circumstances, a Judge will often try to arrange a ‘clean break’, where both parties will no longer have any financial ties to one another. However, they could also institute maintenance orders for regular payments, set for a limited period of time or until one of you dies, re-marries or enters a new partnership, or perhaps until your youngest child reaches a certain age. These payments might also adjust in relation to changing circumstances in the future (i.e. job losses or pay increases).

It is highly recommended to work with an experienced divorce solicitor throughout this process to ensure that there is no room for future claims or adjustments to be made after the divorce is finalised, and to ensure you receive your full entitlement.

More commonly, both of you will have ownership of your family home, but this can be in one of two circumstances:

• Joint Tenants – you are both equal owners of your home and if it was sold you would split the assets equally.
• Tenants in Common – you both own separate shares of the property, which could mean you own a different percentage of the home from your spouse.

The way in which you jointly own property may be a relevant consideration. Depending on a variety of factors, including the age of any children, and depending on how the rest of the finances are arranged, there are a number of options in relation to the property including:

• The house could be transferred outright to one person as part of the divorce
• You and your spouse can agree to sell the home and split the proceeds
• You can buy your spouse’s share of the property perhaps in return for other assets or a lump sum
• You can transfer the home to your spouse and you receive a percentage of the value in the future (for example, when the youngest child reaches 18)

It is usually unwise to transfer or sell a property unless it is part of an overall financial agreement, concluded within the divorce. There can be consequences for doing this, including the ability of the Court to set aside the transfer or to order you to sell a substitute property you may have bought.

CHILD MAINTENANCE

Child maintenance is a maintenance payment that is paid by the non-resident parent (the parent the child does not live with) to the resident parent (the parent the child does live with) to help cover the costs of the child’s income needs.

If the child’s parents can come to an arrangement themselves, without intervention from the Child Maintenance Service, this is known as a family-based arrangement.

If the child’s parents cannot come to an arrangement themselves, then they can apply to the Child Maintenance Service (formerly the Child Support Agency) for an assessment of maintenance to be made. This incurs an application fee (but this can be waived in certain circumstances), and a percentage fee for using the service.

Any child maintenance payments agreed to or assessed as necessary will continue until the child reaches 16, or 20 if they are in full-time education or they are living with a parent who has registered for Child Benefit for them.

The Child Maintenance Service calculator can be used free of charge for guidance on how much maintenance the non-resident parent should pay based on the circumstances surrounding your case.

SPOUSAL MAINTENANCE

Spousal maintenance is paid by the party in the divorce who has the higher income to the party with lower income, and is used when the Court feels a ‘clean break’ isn’t appropriate due to one party’s income not meeting their needs, and the other party having the ability to pay some form of financial support.

The court will look at various factors when deciding if spousal maintenance should be paid as part of the divorce, including:

• The income of both parties
• The income needs of both parties
• The earning capacity of both parties (now and in the future)
• The standard of living during the marriage

These factors will help determine how much the spousal maintenance payments should be, if these will increase or reduce during the term of the maintenance order, and how long payments will last.

Spousal maintenance payments will be awarded for a set period of time; this may be a fixed term or until retirement age. Spousal maintenance payments will instantly stop when the person receiving the payments remarries, or one of several other events triggers a clause in the provision (such as the youngest child of the family reaching a certain age).

During the maintenance order, it is possible for either party to return to Court seeking to increase or decrease the amount of maintenance, or even in some circumstances for it to be “capitalised” (to seek a lump sum to be awarded in place of further maintenance).

In cases where spousal maintenance may be relevant, there is a possibility to avoid this by offsetting this value against adjustments made to the overall division of assets at the point of divorce. This is more complicated than adding the maintenance up and giving the receiving party something of equal value – it must also account for “accelerated receipt” and other relevant factors that are part of the matrimonial legal argument.

Therefore, it is advised to speak to a solicitor to discuss your options for maintenance payments during divorce, to help ensure all agreed payments are fair and appropriate.

It is recommended to list out the various pensions you and your husband or wife have currently, including:

• A personal pension scheme
• A work-based pension scheme
• Additional State Pension

In order to protect the value of your pension while getting divorced, you should contact a family solicitor to help determine an estimate of the pensions built up over the course of the marriage (and before, if appropriate), making the result fair for both parties. This will be factored into the overall financial division. There are several options that can be used to divide pensions following a divorce:

• Pension sharing – you receive a percentage of your spouse’s pension, either by having this transferred to your name or joining their scheme
• Pensions offsetting – this is where you or your spouse is allowed to keep the full value of their pension by offsetting other assets to the other person
• Deferred pension sharing – you agree to share your pension at a later date if only one of you is old enough to be receiving your pension
• Deferred lump sum – you receive a lump sum from your spouse’s pension when they retire
• Pension attachment order – you receive some of your spouse’s pension when it starts getting paid to them

Some of the rules relating to pensions in situations of divorce or dissolution can be complicated, so it is essential to receive clear advice from a trusted divorce lawyer. Any arrangement in relation to pensions can only be formalised within a divorce.

This could dramatically alter what happens to your estate after you’re gone, so it is important to contact a solicitor to discuss updating your will while you are getting a divorce. Especially if everything had been left to your spouse, that would leave you with no beneficiaries in your current will, meaning you would die intestate.

Intestacy means that your estate will be divided in accordance with prescribed rules. This could mean your actual wishes are not kept, affecting the legacy you leave behind to your loved ones.

You may also need some legal advice about any entitlement to death in service benefits which you or your spouse may have.

Currently, there is no time limit in place as to when a claim can be made. These are often made if in the months or years following the divorce one side determines that the terms were not actually as fair as they first envisaged, or one former spouse comes into a considerable amount more money than they previously had.

By working with our dedicated divorce solicitors in Essex, you can help secure a positive financial agreement with your spouse as part of the divorce and secure a lasting, legally binding Court Order to protect your assets from the moment your Decree Absolute is issued.

To achieve this, it is usually advisable to deal with the divorce process and the finances in tandem, and it can cause problems if you conclude your divorce without having secured a Financial Consent Order approved by the Court.

Please note that financial agreements, however “formal” they seem, even if in writing, will not be binding, unless approved by the Court.

The financial claims that one spouse has against the other remain open (with some exceptions) even after Decree Absolute unless they have been dealt with by a Financial Consent Order, approved by the Court. If you remarry before concluding a Financial Consent Order, the claims you have against your former spouse may be defeated.