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Family & Matrimonial - February 14th, 2022
As anyone who has been through a divorce or separation will know, it is always a traumatic experience no matter how calmly and fairly it is managed.
As anyone who has been through a divorce or separation will know, it is always a traumatic experience no matter how calmly and fairly it is managed. After all, it represents the splitting up of a family unit, along with all that this entails. This can include disentangling finances, agreeing on what will be best for any children who may be involved and possibly even disposing of the family home.
It is also a legal process which needs to be carried out carefully and, in most cases, with expert advice and assistance.
While this can’t make the process any less traumatic, the practical benefits it will bring are considerable along with, hopefully, the best possible outcome for everyone involved.
Because it is such a complex area, we can only really touch on the surface of everything family law includes in this article. But it should give you an idea of the procedures that divorce or separation entails and how Eatons can help you to navigate your way through them.
The decision to divorce is never an easy one to make. But, once it has been made, the process itself is a reasonably simple one. It’s all the other issues that it raises that make the process so potentially complex.
To successfully apply for a divorce, there are a number of factors that have to be in place. The first is that the marriage must last at least 12 months before proceedings can begin.
There also has to be grounds for divorce, and these need to include at least one of the following:
Once the grounds for divorce have been established, a document known as a Petition can be prepared and submitted to the court by the partner requesting the divorce, known in legal terms as the Petitioner.
The court will then forward the document to a spouse or partner, called the respondent. If anyone else is named in the document they are called the co-respondent and will also be sent the petition.
The respondent then has eight days to acknowledge receipt of the document, or longer if they live abroad. This gives the respondent the opportunity to state whether they plan to contest the divorce or dispute any aspects of it.
Assuming that everything goes smoothly following the serving of the petition, the next step will involve the court issuing a Decree Nisi. But if elements are not accepted by the respondent, then mediation, and possibly a court hearing will be needed.
After waiting at least six weeks and a day after the Decree Nisi has been issued then the petitioner can apply for a Decree Absolute. This marks the end of a marriage and the conclusion of the divorce.
In some cases, even after the Decree Nisi has been issued the petitioner might not apply for a Decree Absolute. If they still haven’t done this after 18 weeks from the granting of the Decree Nisi then the respondent can apply for it themselves. Once every other aspect of the divorce has been finalised, the marriage is dissolved.
In most cases, the whole process of divorce takes between five and seven months. But in especially complex or contentious cases, it may take up to a whole year and sometimes even longer.
In the case of civil partnerships, the Decree Nisi equivalent is called a Conditional Order while the Decree Absolute is called a Final Order and the procedure for applying and issuing these is exactly the same.
One of the most complex elements that has to be resolved in the event of a divorce is the distribution of finances and assets in a way that’s going to be fair to both parties. In its simplest form, this is just a case of making a 50/50 split of everything. However, this is a relatively rare outcome as there are many factors that mean one partner may be entitled to more or less than the other.
To start the division of assets both parties need to disclose all of their personal and joint assets and liabilities. These can include many things but the main elements are:
It’s vital that there is what’s known as “full and frank disclosure” when it comes to declaring these. Not only is this the only fair way to apportion them after divorce, if any which have not been disclosed come to light then any settlement that has been reached runs the risk of being set aside. In extreme cases deliberately giving false information can also lead to criminal charges being brought under the Fraud Act of 2006 or even for the committing of perjury in court.
In most cases, the distribution of assets is agreed following this disclosure. But if an agreement can’t be reached then an application to have it resolved in court can be made. Initially, this will be examined by a District Judge who will study the case in private and make recommendations. If these are still rejected, then there will be a final hearing overseen by a second District Judge who has no previous knowledge of the case.
In the final hearing both parties will be able to give evidence and call for any witnesses they want to take part. The conclusion will be a binding Court Order that can also include the demand for one partner to pay the other’s costs.
There are many considerations that go into any calculation of a financial settlement, whether it’s agreed before going to court or as part of the legal process. These include:
Because the area is so complex, we always recommend to our clients that they also obtain independent financial advice before entering into any kind of financial settlement and are able to introduce you to a range of suitably-qualified advisers.
Not only is divorce especially hard emotionally on most children, arguably they can be the members of the family who are most affected by it. Therefore the needs of children are generally felt to be the most important consideration in any divorce.
Both parents have equal responsibility for each of their children – and this responsibility continues even after divorce. Therefore, it is normally understood that parents should come to an agreement between themselves about what the specific arrangements for their child, or children, should be after they divorce. This includes where they should live, how they should be educated and even where they should spend their holidays.
However, just as with finances, if an agreement can’t be reached the matter can go to court where there will be two pieces of legislation that will apply. The first is the Children’s Act 1989 and the second is the Children and Families Act 2014.
This can result in a number of different orders being made, each with a different purpose. These are:
Child Arrangement Orders that specify where a child should live or spend part of their time. It’s generally ruled that a child will benefit from spending time with each parent – and how that time will be split can be decided by the court.
Specific Issue and Prohibited Steps Orders deal with particular aspects of a child’s life. These can range from where and how they should be educated to whether they can emigrate with a parent or guardian to another country.
Family Assistance Orders can come into force if it’s felt that a family might need specific help from a support group or Social Services for up to six months following a divorce. It’s intended to resolve conflicts surrounding divorce and, for this to be put into place, all the adults involved must consent to it.
When making its decisions, the court will bear several factors in mind. These include:
Any orders made by the court are enforceable by law and failing to follow them can result in the need to carry out unpaid work, make financial compensations or face other sanctions.
It’s an unfortunate fact that some relationships involve a level of abuse that can be either emotional, physical or both.
There are two general courses of action to take. The first is to inform the police in which case it can lead to prosecution and/or a restraining order being imposed.
The other is to involve the Family Court which is able to make one of two orders.
The first is a Non-Molestation Order which will state that the perpetrator must not use or threaten violence, intimidate or even contact the victim. Failure to comply can be punished by a prison sentence of up to 5 years.
There is also an Occupation Order which can compel someone to leave the family home and not return. Often this also includes setting a specified exclusion zone around the house that they must not enter. The order to leave a home is something that only the Family Court can do as it’s beyond the powers of a criminal court.
Obviously, resorting to injunctions is at the most extreme end of relationship breakdowns. But even a relatively amicable divorce can be painful for everyone concerned. That’s why the alternative routes of round-table meetings and mediation should be the first attempts at resolution. In fact, before a divorce goes to court mediation will have to have been tried and proved to be unsuccessful.
Round table meetings can be held in various ways. It’s best if both partners and their solicitors are in one room trying to come to an agreement. But if there is too much friction each partner can stay in a separate room with their legal representatives putting their case forward on their behalf.
On the other hand, mediation involves working as a couple with a trained and neutral mediator who tries to reach some common ground on which both partners can agree. Once an agreement has been reached it can then be handed over to a solicitor to formalise this in writing.
Not only are these much cheaper ways of arranging a divorce or a separation, but they are also far less emotionally draining – which has to be good news for everyone involved.
Hopefully, this article has helped to answer some of the questions that you may have about Family Law and how it can be applied. If you would like to know more, we will be happy to help. Our expert team have the experience and knowledge to guide you through whatever process is required in a professional and sensitive way.
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