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The financial cost of divorce

By: Benedict Rohan

This article refers to divorce law as it applies in England and Wales.

Apart from all the emotional turmoil, there are so many practical
matters that must be sorted out when a married relationship comes to an
end. If you and your partner find yourselves in the unfortunate
situation where you have decided to separate, you will both need to
consider what will happen to your money, investments,
possessions, property and children.

There are lots of different ways in which you can make arrangements to
part ways. For a start, you don’t need to get a divorce. If you and
your partner can agree amicably on how to settle the things that you
shared during your marriage, you may just opt for an informal
separation. It’s much cheaper and much less stressful than going
through the divorce courts. However, bear in mind that any informal
arrangements may affect any decisions made by the courts if you decide
to take your case down this route in the future. Also, a court may
reverse or alter any arrangement you have made with your partner if it
is considered unreasonable to either party or unfair on any children.

An alternative way to split without going through the divorce courts is
formal separation, in which a written mutual agreement is drawn up,
preferably by a solicitor. The agreement sets out the terms for
settling financial and material matters and arranging the care of any
children. It can cover financial maintenance either for the other
partner or for the children. Any agreement not to take a case to court
in the future will not be legally binding and both of you still have
recourse to the courts should amicable communication break down.

There are various other factors to weigh up when considering whether
divorce is the right option. Remaining married will have various legal
implications, and of course you won’t be able to remarry. Divorce is
therefore often the safest, fairest and most practical option.

Let’s straighten out a few facts about divorce, as it can cause
confusion to many people:

  • To apply for a divorce, you must have been married for at least
    one year.

  • Your marriage must be legally recognised in the UK and you must
    have been resident here for a certain length of time.

  • One partner must file a petition at court setting out the reasons
    for the divorce and providing background information. They are known as
    the petitioner and the other partner is known as the respondent.

  • The petitioner must provide grounds to show that the marriage has
    broken down irretrievably. To demonstrate an irretrievable breakdown of
    the marriage, at least one of the following factors must be proven:

  • adultery

  • unreasonable behaviour (such as physical, mental or emotional
    abuse, or controlling behaviour)

  • one partner deserted the marriage at least two years ago (left
    the marital home without the consent of the other partner or reasonable
    justification for doing so)

  • where both parties consent to the divorce, at least two years
    of living apart

  • where one party does not consent to the divorce, at least five
    years of living apart

  • Where both parties consent to the divorce, it’s known as an
    undefended divorce. Where one party doesn’t consent, it’s referred to
    as a defended divorce.

  • If you file for divorce on grounds of adultery, the court will
    need
    to know the details of the extramarital relationship, including dates –
    you must file for divorce within six months of it taking place.
    However, if one party doesn’t agree to the divorce, proof of the
    adultery must be obtained, which isn’t always easy.

  • If you both consent to the divorce, the court will review the
    application and issue a decree nisi. This can take up to six months, or
    longer if there are children as the court will want to ensure that the
    care arrangements made for them are adequate. A court hearing won’t be
    required, but the court may want to speak to the children if they are
    old enough.

  • Six weeks after obtaining the decree nisi, the petitioner can
    apply for a decree absolute to finalise the divorce. Once the decree absolute
    has been granted, the divorce is complete and the marriage is over.

  • If one partner does not agree to the divorce, attendance at court
    will be required. The partner who disagrees must provide reasons to
    demonstrate why they believe the marriage has not broken down
    irretrievably. The judge will decide whether the marriage has broken
    down irretrievably and will grant a decree nisi if they deem this to be
    the case. Then the petitioner can apply for a decree absolute in the
    same way as they would had the other partner consented to the divorce.

  • If there are any children in the marriage, the court will always
    review the arrangements for their care. This includes where they will
    live, who will look after them, what access both parents will have and
    what financial support will be given. The court will always make its
    decision based on what is deemed to be in the best interests of the
    children. If both partners agree with the arrangements they have made,
    the court will not intervene to change them. However, if one partner
    finds the arrangements unacceptable, the court will review the case and
    make a decision, known as a court order.

    • Financial arrangements – children

    Both partners are financially responsible for their children, no matter
    who the children live with. (Children under the age of 16 or under the
    age of 19 and in full-time education are considered to be your
    dependants.)

    The most amicable way to arrange support is through a voluntary
    agreement, where you and your partner come to a mutually acceptable
    arrangement for looking after the children. This may be an informal
    verbal arrangement or you could have a written agreement drawn up by a
    solicitor (which is the safest option as it can help to resolve any
    disputes further down the line). There are various ways in which one
    partner can provide financial support to the other. They may agree to
    pay all the household bills and perhaps the mortgage or rent, they may
    buy the childrens’ clothes or pay for their holidays, or they may
    prefer to give the other partner a regular maintenance payment for
    their partner to spend appropriately on the children.

    If you’re unable to come to an informal arrangement with your partner,
    you’ll need to apply for financial support through either the Child
    Support Agency or the court.

    Financial arrangements – settlements for the other partner

    Even if there are no children in the marriage, making a financial
    settlement can be tricky business. If you are able to come to an
    informal agreement together on how you will split your wealth, it can
    save a lot of time, stress and money. However as with everything in
    life, when there’s money involved, disputes inevitably arise. Many
    divorcing couples therefore end up turning to the court to obtain a
    financial settlement. In England and Wales, the general principle
    concerning disputed settlements is that both partners should receive
    50% of their combined wealth. There are sometimes extenuating
    circumstances though, particularly in cases where a large amount of
    wealth was accumulated by one partner before the marriage, or where one
    partner has, for example, given up a career as a result of the marriage
    or of having children. In such cases the split may not be completely
    equal.

    Financial arrangements – property

    Again, you may come to an informal agreement as to what to do about the
    marital home, or, if you can’t agree, the courts will decide. One
    partner may still be living in the property, but this does not give
    them any more rights than the other partner. The partner who is no
    longer living in the home still has the right to come back to collect
    items belonging to them (although in cases of domestic violence this
    may be restricted by a court order), and still has a say in what
    happens to the home – their consent will be required to put it up for
    sale, for example. Even if one partner isn’t listed on the deeds as an
    owner of the marital home, they nevertheless have equal rights to the
    property – either to live in it or to have a say in whether it is sold.
    However, to protect their rights, this partner must complete a form and
    send it to the District Land Registry.

    A final word of advice

    In an ideal world, it’s always best to be able to agree things amicably
    without the indignity of involving solicitors or going to court. In
    reality, however, it’s not always easy to reach a fair and reasonable
    agreement – and even if you do, things might turn sour at some point in
    the future and either one of you could be left in the lurch. It’s
    therefore best to consult a solicitor to ensure you understand your
    rights and what you’re entitled to, and to help you reach an
    arrangement with your partner that will allow you both to live
    reasonably and comfortably when you separate.

    Article Source: http://www.a1-articledirectory.com

    Biography: Author: Benedict Rohan Website: www.mortgagenation.co.uk Benedict Rohan works as a freelance finance writer. Commercial Mortgage, Homeowner Loans, Remortgages

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