Divorce and Separation: A JD Law guide

Transcription

1 Divorce and Separation: A JD Law guide

2 The Office for National Statistics estimates that over 40 per cent of all marriages in England and Wales end in divorce, with around 120,000 couples parting ways every year. Going through a divorce can be an intensely stressful time and it s common for people to have questions. Do you have grounds for divorce? What happens if your partner does not agree to a divorce? How will your property and assets be divided? For those who want advice on these matters, and other issues which might arise, it is important to seek independent legal advice. For those who have never previously consulted a solicitor, this can be a daunting prospect. However, it is important that you get the information you need about legal proceedings, your financial situation and what will happen to you or your children. A solicitor can provide friendly, pragmatic advice that is right for you and your circumstances, using their knowledge of the law and professional experience. This guide will cover some of the keys points relating to separation and divorce, but it is intended for general guidance only. This guide is designed to give a general introduction to the subject, but please remember that you should always seek expert legal advice before entering into any arrangement. All information accurate at the time of going to print.

3 The divorce process Anyone can file for divorce if they have been married for over a year, providing one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. It does not matter where the couple were married. If you have been married for under a year there may be grounds for a decree of nullity in certain circumstances, i.e. one or other of the partners was already married, the marriage has not been consummated or you did not properly consent to the marriage. This is not an exhaustive list and legal advice should be sought in regard to other grounds where a marriage may be declared voidable. To seek a divorce, a relationship must have permanently broken down. Under English Law there are five grounds to a divorce: 1) You have been apart for a continuous period of two years whereby the other party s consent is mandatory. Separation usually involves living apart, but you can live in the same property and still be separated if you can demonstrate a significant change in living arrangements. This can include things like no longer sleeping and eating together or doing any domestic chores, such as ironing or washing, for each other or engage in any sexual relationship. 2) You have been apart for a continuous period of five years whereby the other party s consent is not mandatory. 3) One party has deserted the other party for a period of two years. 4) Unreasonable behaviour. 5) Adultery. When issuing your divorce proceedings you are required to set out your evidence in a document called a petition. If you file for divorce you are called the petitioner, and your husband or wife is called the respondent. Once you have filed your petition with the court, you have started the divorce process. What will happen next depends on whether or not your partner agrees to the divorce, chooses to contest the petition or simply ignores it. It is often sensible to try to obtain your partner s consent and come to an agreement over the contents of the petition, especially if adultery or unreasonable behaviour has occurred. The divorce petition will be issued by the court and served on your partner, who will then be required to complete a document (acknowledgment of service) confirming whether he/she will consent to the divorce. If your partner consents, you can proceed with preparing the documents to apply for your decree nisi; the penultimate step in the divorce. If your partner contests, your solicitor will advise as to the next stage in the process. If your partner ignores the petition then your solicitor will advise as to the next steps to be taken to ensure that you obtain your divorce without your partner s cooperation. The final stage of a divorce is called decree absolute. You are able to apply for this six weeks and one day after the decree nisi. If there are any outstanding financial issues then JD Law advises that your application for a decree absolute be deferred pending resolution of the financial matters, so as not to prejudice your position. It is important the decree absolute is kept safe, as you will be unable to remarry without it.

4 Financial relief Irrespective of who initiated the divorce proceedings, either party can make a claim for ancillary relief. You can apply for a financial order if you want, for example: a lump sum payment, ownership of a property, regular maintenance payments to help with children/living expenses or a share of your partner s pension payments. All potential applicants in financial proceedings must attend mediation unless there are specific reasons to exempt you. Parties attend a Mediation Information and Assessment Meeting, either together or separately. The mediator will work with couples to see if they can reach an agreement. If they cannot and it becomes necessary to issue court proceedings, the mediator will provide, upon request, a form confirming that mediation has failed. The provision of this form will then allow you to issue the financial proceedings. If mediation proves successful and an agreement is reached then the mediator will provide a memorandum of understanding which is not legally binding. However, the contents of the memorandum of understanding will then be drafted into a financial consent order for the court to approve and seal to ensure that it then becomes legally binding. Financial proceedings are treated separately from divorce proceedings, but can only commence once a divorce is underway. To initiate these proceedings, a Form A document will have to be filed with the court. At this point, the court will provide directions. Both parties will be required to disclose their financial circumstances to each other. This will have to be filed at the court and exchanged with the other person. The document is known as a Form E. This sets out the individual s current financial position and other details which might be relevant when the court determines the application. Once Form Es have been exchanged, both parties will have the opportunity to serve on the other a request for further information and documents if it is considered either disclosure is incomplete, documents are missing or clarification is required. Initially parties can go about seeking a financial settlement without the court s involvement. However, if an agreement cannot be reached, the matter will be referred to a Judge. The first hearing to take place is called a First Directions Appointment (FDA) and is to ensure that both parties have fully disclosed their financial position, providing the relevant documentation. The Judge will give directions as to any additional documents that need to be filed, e.g.: valuations of properties. If no settlement is reached at the FDA, then the matter will be listed for a Financial Dispute Resolution (FDR) hearing. At the FDR, the Judge will give guidance on settlement and encourage the parties to try and negotiate an agreement.

5 In FDAs and FDRs, no financial order can be made by the court without the consent of both parties. However, if the finances still have not been resolved, the financial application will be heard at a final hearing. At this stage, a court order will be imposed, which will be binding on both parties (providing that they have been open and transparent about their financial situation). If one party has failed to disclose all the relevant information, then their partner may try to bring the matter back to court. The court has powers to make the various orders within ancillary relief proceedings. Examples of such orders are set out opposite but this is not to be considered as an exhaustive list and is for illustrative purposes only the court s powers are wide: Top up orders in relation to child maintenance Maintenance for a spouse Lump sum payments Property adjustment orders Orders relating to pensions Orders relating to shares The court may make an order that covers any or all of the above. However, not all of the orders available may be suitable in your case, and whether you would be successful depends upon the circumstances and both you and your partner s financial position. It is advisable to seek legal advice from a solicitor on whether you can apply for an order. Separation A legal separation allows you to live apart, without actually getting divorced. You can ask for a judicial separation for the same reasons you can file for divorce (adultery, unreasonable behavior etc), but you do not have to prove that your marriage has irretrievably broken down. Separation usually involves living apart, but you can live in the same property and still be separated if you can demonstrate a significant change in living arrangements. This can include things like no longer sleeping and eating together or doing any domestic chores, such as ironing or washing, for each other. There are several options available to those who wish to separate. These include: Putting your agreement on children, property, finance and other issues into a document called a deed of separation. This should be prepared by a solicitor. Sign a legal document, incorporating the deed of separation. This is called a separation agreement, although it is not legally binding. Seek a judicial separation. This is a court order and is in many ways similar to divorce. However, partners cannot remarry, nor obtain a final financial order. Couples who decide at a later date that they want to divorce will still have to go through the divorce process as described above.

6 How JD Law can help To find out how we can help you, please contact our family law specialist: Mark Goldstein JD Law LLP, Fourth Floor, Thavies Inn House, 3-4 Holborn Circus, London EC1N 2HA The content of this guide should not be considered by any reader to comprise full proper legal advice. All information accurate at the time of going to print.