Divorce

Divorce can be fairly straightforward if both parties agree that the marriage is over. Nevertheless, difficulties can arise in resolving how and when to separate, where to live, and the arrangements for children and finances.

At SMR Solicitors, we offer a constructive and professional approach to divorce, and can help progress matters as quickly as possible. We will be happy to discuss anything that is unclear or answer any further questions you may have.  The answers to some common questions are detailed below.

Who can start divorce proceedings?

Anyone who has been married for over a year, providing one of the couple has their permanent home in England or Wales or has been resident here for at least a year prior to when the divorce petition starts. It doesn't matter where you were married.

How can a divorce be started?

The only ground for divorce is that your marriage has “irretrievably broken down” and that, in addition, one of five “facts” applies. The divorce petition will only be accepted by the court if you can prove one of these facts.

i) Your spouse has committed adultery and you find it impossible to continue to live with them.
ii) Your spouse’s behaviour has been so unreasonable that you can no longer bear to live with them.
iii) Your spouse has deserted you for a continuous period of two years or more, against your wishes.
iv) You and your spouse have been living apart for over two years and your spouse consents to a divorce.
v) You and your spouse have been living apart for over five years (consent not required).

If one of the five facts applies, what happens next?

It is often sensible to try to obtain your spouse's consent to the divorce and to reach agreement over the contents of the petition. Every petition follows the same format. It contains basic information about you and your spouse, your addresses, the ages of any children, and a statement that the marriage has “irretrievably broken down” and the “fact” that applies. The petition will include a section known as a “prayer”, which will include a request for the divorce to be granted. It may also include a request for financial provision and a claim regarding the legal costs of the divorce. Your original marriage certificate is sent to the court with the petition, and will not be returned.

What about the children?

A form is also sent to the court with the divorce petition outlining the arrangements relating to your children. The law encourages couples to try to agree those arrangements amongst themselves. The Statement of Arrangements for Children is usually completed by the person filing the petition. It should be sent to the other spouse before it is filed. If agreement is not reached, this does not prevent the divorce from proceeding.

How long does the divorce process take?

A divorce takes approximately four to six months, although the Decree Absolute is often not obtained until the finances are resolved. This may be much later.

How will assets be divided?

The most difficult and often the most emotive aspect of a relationship breakdown is the task of dividing up the assets. We can help you to negotiate an appropriate financial settlement and advise you how the courts will calculate what each party should have.

It is a common misconception that assets are always divided equally. There is a statutory checklist of matters that have to be considered, which is set out in s25 of the Matrimonial Causes Act 1973. The court will always give top priority to the welfare of any children under the age of 18 years. The other factors are:

  • the income and earning capacity of each party, the property they own and other financial resources they each have;
  • each party's financial needs, obligations and liabilities;
  • the standard of living enjoyed during the marriage;
  • the length of the marriage and the ages of the parties;
  • any physical or mental disability either party suffers from;
  • contributions made by each of the parties to the marriage both financially and otherwise;
  • any behaviour by either of the parties that is so serious that it cannot be ignored by the judge;
  • the value of any benefit that either of the parties will lose the opportunity of acquiring as a result of divorce, such as pension and insurance benefits.

The court has a wide discretion as to how to apply these factors to a particular case. The aim is to achieve a fair division of the assets and income. To that end, the court will require both parties to make full and frank disclosure to each other of their financial circumstances.

As well as considering the matrimonial home, investments, savings and pensions, we can advise you about inherited assets, assets that were acquired before the relationship and after the separation, family businesses, and the effect of pre-nuptial agreements.

What if assets are being disposed of?

In some cases, it is necessary to take urgent steps to prevent the disposal of assets during divorce proceedings. An application can be made to the court to either freeze assets or direct how they may be used pending any final court decision.

What if there is a family business?

We frequently act in cases where a key asset to be taken into account is a significant shareholding or other form of investment (such as a share option) in a company or other business entity, such as a larger company that has acquired the original business for a non-cash consideration.

Are there any adverse implications of splitting up but not actually getting a divorce?

Potentially yes. Until you have received the Decree Absolute from the court you are technically still married and this can result in unexpected financial consequences. For example, if several years after separating you receive a large inheritance then your spouse may be entitled to claim some of your windfall if they are still legally married to you. In addition, if you die, then your spouse may be able to make a claim against your estate, or if you jointly own a property, this may pass to the co-owner, regardless of what your Will may dictate.

Common terms used in family law

Affidavit – a sworn document.
Decree Nisi – the court’s certificate that you are entitled to a divorce.
Decree Absolute – the document that shows that you are divorced and able to remarry.
Petitioner – the person bringing the proceedings.
Respondent – the person responding.
Ancillary relief/financial remedies – the term for sorting out the financial matters.
Form E – the detailed financial statement that has to be completed and exchanged by the couple in order to fully disclose their respective financial positions to each other.