Ten Things You Should Know about Divorce

Author:
Fiona Lyon
Partner, Family Law and Divorce Solicitor
Date:
15/01/2019

Divorce is a subject people think they know a lot about, usually from stories through the grapevine. We hear about it all the time, perhaps from articles in the celeb gossip magazines or the experiences of our own friends and family. So we probably don’t ever doubt that we know how the divorce process works.

Nevertheless, there are many common misconceptions surrounding divorce, so this article provides details on ten aspects of divorce law which you may need to know about.

For initial advice get in touch with our Divorce Solicitors.

Call us on 08002605010 or request a callback and we will help you.

Quickie Divorce Don’t Exist in England or Wales

We often hear the term “quickie divorce” in the press when a celebrity couple are splitting up. But in truth, celebs can’t fast-track the divorce process any quicker than the rest of us.

What we hear in the press refers to a Decree Nisi, a legal document that confirms the Court’s permission for the divorce to be finalised with a Decree Absolute. However, it usually takes several months for a Decree Absolute after this point due to the fact that there is a mandatory 6 week “cooling off” period which can be further delayed until a financial settlement has been reached which can take some time to navigate.

You Don’t Have to Assign Blame to Get a Divorce

You may have seen in the news that campaigners are pushing for couples to be able to apply for a “no-fault” divorce. This would allow couples to file for divorce without a partner being blamed for the breakdown of the marriage. Instead, they can both agree amicably that they don’t want to be married anymore.

But the current system does actually give couples the option of applying for a form of no-fault divorce, albeit with some restrictions. You can apply for a divorce if you’ve been separated for more than two years and your spouse agrees to provide written consent, or, if you’ve been separated for at least five years you do not need the consent of your spouse.

However, the case of Tini Owens, who cannot get divorced from her husband without his agreement as he doesn’t want to divorce, has sparked a nationwide debate on whether these rules are fit for purpose. Mrs Owens wanted the Supreme Court to grant her a divorce based on her husband’s unreasonable behaviour but was unable to prove her case. Last summer, the Court rejected the appeal on the grounds that her husband’s behaviour had not been sufficiently unreasonable. This means she must remain married until 2020, as she only left the married home in 2015.

You Won’t Get a Bigger Settlement if Your Partner Committed Adultery

The reason why a marriage broke down is not a factor in deciding how financial assets are divided in divorce. So if your partner has had an affair, you can’t automatically expect a generous settlement, with your ex being penalised for their indiscretions. Ultimately, the Court isn’t there to pass moral judgement on a person’s conduct, but determine how a divorcing couple’s wealth can be split fairly.

Adultery is Only if Your Partner Cheated with Someone of the Opposite Sex

The law recognises the act of adultery as sexual intercourse between a man and a woman. So if, for example, your husband cheats on you with another man, this cannot be considered adultery in legal terms.

The introduction of same-sex marriage in the UK in 2014 has prompted calls from some for this rule to be updated. Nevertheless, a person in this situation could still petition for divorce on the grounds of unreasonable behaviour, citing an inappropriate relationship as one of the allegations. In this way they could prove their husband or wife has acted in such a way that they can’t reasonably be expected to live with them.

English Courts May be Generous to the Financially Weaker Person

Divorce courts in England and Wales will often look to divide assets on a 50/50 basis or thereabouts, which means the breadwinner and the homemaker may walk away with roughly the same amount of money in capital terms. That means the person who is in a weaker financial position won’t necessarily lose out.

Stay-at-home Mums May Not Get Maintenance Payments for Life

While it’s true that many women who have stayed at home to look after the children are in a weaker financial position than their husbands, divorce Courts have become increasingly keen to manage expectations on what they’re entitled to after divorce when it comes to maintenance. This was noticeably stricter after the financial crash where income is more precarious. Indeed, decisions are increasingly being based on the fact that the financial weaker person will have to get a job if they need money, rather than rely on indefinite payments from their wealthier ex-spouse.

Assets You Held before Getting Married Can’t Always be Separated

A divorce Court will consider the needs of both partners when making financial decisions, which means a settlement may include assets that one person held before they were married if housing requirements dictate the asset should be invaded. This can include pension contributions. This is one reason why couples may enter into a Prenuptial or Post-Nuptial Agreement, as it outlines the division of assets and income and says how these should be dealt with in the event of a divorce. However, a Prenuptial Agreement isn’t technically legally binding, so while divorce Courts are taking these into consideration if properly entered into, they are not compelled to apply them if it would mean an unfair result would be achieved. For example, a mother with primary care of a child being homeless.

Courts Won’t Look Kindly on Hiding Assets

Divorcing couples are required to give full disclosure of any financial assets they hold worldwide. This means committal proceedings could be brought against anyone who knowingly tries to hide their assets in divorce, which could result in imprisonment even though it is a Civil rather than Criminal Court. At the very least, a Court will be less sympathetic towards a person who has tried to withhold information and costs orders may be made if time has been wasted because of the lack of disclosure. If your financial situation changes after you’ve petitioned for divorce and disclosed your assets, you still need to make this new information known on an ongoing basis.

Don’t Try Reading Your Ex’s Emails

Many couples will know each other’s online passwords, the answers to security questions and have devices synced up with each other. It may be tempting to try peeking at your ex’s sensitive information, such as emails, online photos, financial documents, company information, and scheduled appointments. However, this is against the law and can carry a hefty fine, and maybe even a prison sentence. You also must not take copies or hold electronic copies. While we’re on the subject, it’s worth taking some basic cyber security precautions of your own, such as changing your passwords and separating synced up accounts, to prevent your spouse trying to spy on you.

Finances on Divorce Don’t Follow a Formula

Many couples getting a divorce are under the mistaken impression that a formula is applied when the division of assets is being worked out. But as we said earlier, divorce Courts usually start from the position of dividing capital assets on a 50/50 basis and then working out each person’s individual needs. So instead of applying a one-size-fits-all formula, decisions are made on a case-by-case basis, with each couple’s unique and specific requirements considered throughout the divorce process. The practice is an art not a science and therefore legal advice must be sought to avoid mistakes being made.

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