Anne Shears, a solicitor with The Family Law Company, discusses how the divorce process works in practical terms, in particular looking at the need for advice with regard to finances.
No divorce is the same
When a couple decide to separate, divorce proceedings are not usually the first thing they think about. Instead, they often need to tackle more pressing practical concerns, such as where each of them is going to live, and what arrangements are to be made for their children.
The reasons why two people break up are particular to them. Where some might want to get on with the divorce, understanding that the relationship is well and truly over, others can feel uncomfortable with the idea of a divorce. This may be because they hope for reconciliation or simply that they are not ready to bring their marriage to a formal end. Other people might be scared of what’s involved in the process of divorce, worried by legal terms and the thought of financial demands, such as Court fees.
The divorce process
It may be helpful if those who are nervous about divorce to understand that, leaving emotional aspects aside, the legal side of a divorce is a relatively simple process.
A couple must have been married for more than a year before they can divorce. There is only one ground for divorce in England and Wales and that is that a marriage has irretrievably broken down. There are five facts that can be used to show a Court that this has happened. These are:
- A spouse has committed adultery with a member of the opposite sex and the other finds it intolerable to go on living together.
- A spouse has behaved in such a way that it would be unreasonable to expect the couple to go on living together.
- A spouse has deserted the other for a continuous period of two years or more.
- The couple have been living separately for two years or more and agree to the divorce.
- A couple have been living separately for five years or more whether or not they agree to divorce.
The divorce will only be granted by the Court if the Petitioner (the spouse bringing the divorce proceedings) can establish one of these five facts. If the fact on which the divorce is based can be agreed before the Petition is lodged with the Court, this usually means that the divorce will go through more quickly – this can help to keep any conflict or disagreements to a minimum, enabling the separating couple a better chance of amicably agreeing finances and any other arrangements that need to be made.
For many people, it is only when they take legal advice about their separation that they realise that a divorce does not just end the marriage but also means that a Court will consider their finances. The Court cannot consider any agreement reached between a married couple about their finances until a divorce has reached the Decree Nisi stage.
Remember that being divorced (the making of Decree Absolute) does not bring an end to the financial claims that can be made by either spouse. This is done in a separate financial order made by the Court.
Good advice about the timing of Decree Absolute and resolving the finances is essential, especially if one or both of the parties intend to remarry. In practical terms, if the Decree Absolute is made but financial claims arising from that marriage are not concluded by Court Order and one of the parties remarries without protecting their ability to make financial claims, they will no longer be able to make claims against their former (unmarried) spouse. However, their former spouse could still make claims against them.
When considering whether to take professional advice, remember that the divorce proceedings are only one part of the process. It is equally important to take careful advice to resolve the finances in such a way that puts each person in a position from which they can move on into their respective futures.
For further information or to speak to one of The Family Law Co’s divorce specialists, call 01752 674999. We offer a free initial half hour appointment.