Divorce

Sadly, where second wives are concerned, there is usually a divorce somewhere in the background, while some of our members are divorced themselves. This is not a website about divorce, and we certainly hope your own relationship will not end this way, but even if it is not your own divorce, it can be helpful to understand some of the emotional, legal and financial issues around divorce that may directly affect your husband/partner, his ex-wife and any children they may have, and therefore indirectly affect you. We offer some links here to websites we think are particularly useful on the subject, and we have a practical guide to the divorce process below. You may also want to look at our Legal & Financial section.

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Emotional issues:

What children are feeling:

The Divorce process

To be able to apply for divorce you have to have been married for over a year. If you have been married for less than a year, you can try to annul the marriage instead. This is a different process, which is not covered here.

Divorce in England and Wales

To be entitled to get divorced in England (and Wales) you must show that you have sufficient connections with England or Wales. The court will want to know that you are either living in England or Wales (residence) or regard England or Wales as your home country (domicile).

Overview of the process

A flowchart of the process can be seen here that demonstrates all the steps in an uncontested divorce with consensual financial agreement (signing a consent order on the finances).

Grounds for divorce

For a divorce application to be successful, you must show that the marriage has irretrievably broken down by establishing one of the following five facts as proof:

  1. Adultery of the other spouse.  You cannot get divorced because of your own adultery – only because of your spouse’s adultery.  In general you should not name the person your spouse has had an affair with, as it gains you nothing and can add considerably to the costs. You should only proceed on grounds of adultery if the spouse who committed adultery is happy to admit to it. This is because it is very difficult to prove adultery (you need video footage of sex taking place, or a pregnancy – hotel receipts and text messages/photos are not enough). If you proceed with an adultery application and your spouse won’t admit it, then you will have to start again and will have wasted a good deal of time and money.
  2. Desertion by the other spouse after two years.  This is rarely used – it refers to the cases where a spouse has literally disappeared and has not been in touch.
  3. Separation with consent after two years.  This is a good one to use if you can as it avoids laying the blame on either side. You must, however, have been living in separate addresses for at least two years. It is just about possible to claim two years separation when you have actually been living in the same house, but you need documentary evidence of doing separate shopping / laundry / bills etc. If the courts are not satisfied that you have been properly separate for two years, your application may be rejected. This reason can only be used if both parties agree, so don’t apply using this reason unless you have checked that your spouse agrees.
  4. Separation without consent after five years.  This reason also avoids blame. It can be used even if your spouse doesn’t agree to the divorce. The downside is obviously that five years is a long time to wait.
  5. Unreasonable behaviour.  This is the ‘catch-all’ reason used when none of the other reasons apply. It is probably the most common reason given for divorce because: a) it allows you to get divorced right away and b) you don’t need your spouse to admit to the unreasonable behaviour (unlike adultery), and so they cannot block the divorce. It is still better if your spouse agrees to sign their divorce papers, as this will keep costs down. You will need to detail three or four examples of unreasonable behaviour (though it doesn’t have to be anything terrible).  Reasons such as: frequent arguing or making you feel ignored and isolated or lack of sex can all be valid if worded correctly.

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Petitioner vs Respondent

One of the main decisions is who will apply for it (the ‘petitioner’) and who will be the one agreeing to it (the ‘respondent’). It is normally a little bit more expensive to be the petitioner if each party is paying their own costs, because the petitioner will need to pay for most of the costs relating to filing papers with court. However, there are some advantages to being the petitioner if there is a choice, because it means being able to drive the process without delays (and the additional costs and emotional strain that this can bring). The petitioner will make the first financial offer when the finances are discussed and will be the one who has the right to apply for the Decree Absolute at the end.

Often people are reluctant to be the respondent, because they are worried about being seen as the one who has behaved unreasonably. This is a minor point and after the first form is completed it factors nowhere else in the divorce process. There are no financial penalties for being an unfaithful or unreasonable spouse when it comes to the court decisions, and the grounds for divorce appear to be almost completely disregarded unless they have resulted in significant financial or legal impact for either party, that is material, direct and 100% provable.

The respondent is not responding

In some cases, you may have applied for divorce and the respondent may just do nothing, refusing to engage with the process. That can be difficult because it means that you may need to serve the papers via a bailiff. Your solicitor should be able to offer you options and ways forward in this case.

Defended Divorces

Another complication can be that the spouse says that they plan to defend the divorce – which means they want to try to stop the divorce happening and stay married. This is rare in that it costs a lot of money to defend a divorce and will almost certainly fail to work. It will, however, delay the process and make things more expensive for all involved.

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Divorce Petition / Arrangements for Children

The Divorce Petition and the Statement of Arrangement for Children are the first forms that need to be filed with court to start the divorce process. The court needs to know the grounds for divorce, whether there are arrangements for the children, and who are the relevant petitioner and respondent. It is a straightforward process normally, but can mark the start of complications. It is not important what the arrangements for children are at this stage and whatever is signed will not act as a Contact Order, but if it is particularly wrong then it is worth making sure it is formally challenged. It is generally advised that inaccurate details are not that important, but it can be a worrying indication of future battle lines and it is important to set the record straight at the beginning.

As an example, if you have a pattern of contact with the children that means that you have 35% care and the other parent has 65% care (5 nights per fortnight with the non-resident parent), you may argue quite reasonably that there is shared residency of the children and they have financial needs with both parents, as opposed to their financial needs being met only by one of the parents. The closer you are to 50% care, the stronger the case will be to make sure that any financial proposals provide for the children in both homes with both parents. If there is an unfounded claim in the statement of arrangements for children that you often cancel contact, that may jeopardise your argument about shared residency further down the line, or you might have to spend hundreds of pounds in solicitor’s fees later to set the record straight.

Your solicitor should be able to offer a more informed opinion on this, but from experience, if it doesn’t feel right and it doesn’t make sense, don’t just go along with it to make things easy. You are simply pushing the problem further down the line.

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Decree Nisi

A few days after the papers are lodged with court, the respondent will receive the relevant documents to sign and agree to the petition and to the arrangements for the children. The petitioner can then apply for the Decree Nisi. Nisi stands for ‘unless’ in Latin. It literally means that the spouses are divorced unless the application is withdrawn.

Financial Settlement

The financial settlements generally include arrangements on:

  1. How the assets and liabilities are split, such as any property, investments, credit card debt and mortgage payments.
  2. How pensions compare and whether there is a need to share any existing pension pots to provide both parties with pension income. A valuation of any existing pensions will be part of the financial disclosure, and if they are unequal, it is usually required that they are included in the split.
  3. Spousal maintenance may also be considered. This is paid by the ex spouse with the higher income to their former partner, if they cannot support themselves without it.

Financial arrangements for the children (‘child maintenance’) are separate, usually set according to a formula, will be ongoing until the children have left education, and can be changed.

If you have agreed the details between you, then your solicitors will need to draft a consent order and you both need to sign it. Once this is agreed and signed it is very difficult for one of the parties to change their mind. There will need to be a very significant and unexpected reason why that would be justified.

If, however, there is animosity or unwillingness to cooperate, this is usually the most painful, expensive and time-consuming part of the divorce process. Family law needs to accommodate all personal circumstances and can only offer general guidelines, so separating couples may form totally different notions about what is a ‘fair’ settlement, while emotions can be running high. If there is a risk of conflict, it is vital to get a good solicitor and if possible to avoid self-representing in this part. Quite often, ex-spouses are completely surprised to see how their former spouse is reacting during the divorce, especially when they expected a consensual and amicable divorce. It is important not to rely on verbal agreements, nor to become too financially exposed, hoping the other side will share your idea of ‘fair’.

Any awards of assets depend principally on the potential recipient’s needs, own income and ability to earn income. There are no set formulas and the amount depends on the payer’s net financial position, among other factors, such as age, health etc. For example, a fairly young and healthy woman who has been mainly a housewife and now has children that are in school, will be expected to eventually enter employment, so spousal maintenance may be awarded for the first few years only.

It is generally better to agree the finances between the ex partners and not go to court because it is unnecessary, it can end unpredictably and it is very expensive. Overall, taking a slightly worse deal and closing the case down is preferred to spending thousands of pounds to settle in court, but at the same time don’t compromise more than you will be able to bear for the rest of your life.

If you end up going to court, then you will need to submit a Form ‘E’, disclosing all your financial information. It is not necessary to disclose a new partner’s financial information, even if you live together.

The First Appointment is the first appearance in court and it is mainly a day to get information and clarify points in each other’s form E. You will have exchanged those in advance and you and your solicitor will have gone through the other side’s form with a fine toothcomb, compiling a list of clarification questions. This is a good time to try and remember all the accounts and credit cards/loans that your ex may have had and check they have included them all – the same with any pensions and capital assets (cars worth more than £1000 or so, houses, land, investments etc). If anything is missing, raise it in the questions and query any suspicious expenditure. Quite often the First Appointment is an opportunity for your barrister to strike a deal with the other side’s barrister. It sometimes raises the pressure being in court, and this can bring an end to the financial arguments.

Other times it doesn’t and you then need to proceed with the Financial Dispute Resolution Appointment (FDR). During the FDR it is likely that the Judge will express an opinion on how the finances should be broadly split. This is not final or binding. This is also another opportunity for a barrister to barrister negotiation and a likely closure.

If that doesn’t work, you will end with the Final Hearing in court. All the relevant information will need to be in place and the court will make a final decision. For better or worse, there will be closure.

Your solicitors will then need to work in implementing whatever you either agreed consensually outside of court or what the court ordered. Conflict is still possible here, for example, if one of the ex spouses has been ordered to sell a house but has been given no strict deadlines or penalties and decides to make it as slow a process as possible. But overall, the end is very close.

Decree Absolute

This is the finale of the whole process. No matter what happened, it is about to finish and both sides to try and get on with their lives.

The petitioner can apply for the Decree Absolute from six weeks after the Decree Nisi is issued. In reality, it often takes much longer because it is rare that the divorce would be allowed without settling the finances and they normally take a little longer than six weeks. Sometimes people have successfully applied for the Absolute without the finances being sorted. This is not what solicitors advise generally because it can leave either party financially exposed, which is not a good idea, especially if young children are involved.

If the finances are sorted and the Nisi has been issued but the petitioner doesn’t apply for the Absolute, then the respondent has the right to apply three months or so after the Nisi has been issued. It becomes a bit more complicated if that happens, because the petitioner will need to explain why they have not taken the opportunity to apply, usually in front of a Judge. However it means that if you have got there the longest you would ever need to wait is about three months!

Here is a link with a bit more legalistic detail on the financial settlement process.

If you register with wikivorce you can also access a calculator to give you a very rough idea of what would be a fair settlement provided that the needs of both parties are straightforward. See details here.

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Arrangements for the children

The other element of divorce is deciding where and with whom the children will live and how often the other parent may see them.  We do not know what the statistics are, but we would guess that most divorcing parents are able to work out how best to jointly take care of their children, without any intervention from the courts.  However, where a divorce has been particularly difficult, this area can be a minefield, with children used as little pawns to hurt or punish the other parent.

The UK Children and Families Act 2014 came into force on April 22nd 2014, and there have been some important changes to arrangements for the children.  As we understand it, the starting point is the sensible one that parents know best what will work for them and their children, and there is a presumption that, in the absence of abuse or other factors that might harm a child, it is best for children that both parents will remain involved in their life.  If, however, the parents cannot reach an agreement, they will now be required to attend a mediation and assessment meeting ‘MIAM’ to try to resolve the problem, before it may come to court.  (There are some exceptions to this).   If the court  ultimately needs to make an order, the divisive terms ‘residence’ and ‘contact’  will no longer be used.  Instead there will be a ‘child arrangements order’.

This law has only recently come into effect, and it remains to be seen what difference it will make on a practical level.  Even under the old law, the court could make an order, these orders are notoriously difficult to enforce if one parent is determined to be difficult.  Still, we feel it is a step in the right direction.

Please let us know your experiences.