DIVORCE AND FINANCES
In all divorces, how the husband and wife act could influence the settlement and how fair it is, advises Judith Wright of Forbes solicitors
Everybody’s experience when divorcing is different. It is impossible to compare a friend or relative’s divorce outcome with that of your own, as circumstances will be different. Recently we have seen an increase in parties seeking a limited amount of advice on a fixed-fee basis.
Paying for half an hour or an hour of a solicitor’s time can often give the party good practice on how best to conduct themselves and some practical tips on what they can do to assist their situation. It is possible to reach an amicable agreement without having to go to court but unfortunately that is not always the case. To assist you I have shared some of the most frequently asked questions from my clients:
Can I divorce on the basis of irreconcilable differences?
Unfortunately not. In England and Wales there is only one ground for divorce which is irretrievable breakdown but you can try and support this by using one of five factors:
1. Your spouse’s adultery and that you find it intolerable to live with him or her.
2. Your spouse’s behaviour, ie they have behaved in such a way that it would be unreasonable to expect you to continue to live with that sort of behaviour.
3. Desertion for a continuing period of two years or more.
4. Separation for a period of two years or more and, your spouse agrees to a divorce on that basis.
5. Separation for a period of five years or more (irrelevant as to whether your spouse agrees to the divorce or not).
If I am divorcing on the basis of adultery, do I have to name the new girlfriend/boyfriend?
No it is not compulsory to name the third parties concerned.
I do not know what assets my ex has. How do I find this out?
Your ex will be under a duty to disclose all savings and assets including those off-shore either on a voluntary basis initially or, ordered by the court.
What if my ex hides information from the court?
The Supreme Court has made it perfectly clear that any omission of disclosure could render any ultimate order void. Your ex will be warned about this by their own solicitor.
Does the court use a formula to divide the assets?
The court does use a formula. They start on the basis of a 50/50 division of your assets between you and your ex-partner. However, our law is discretionary and the courts also look to achieve fairness not just equality and there will be several other factors they will apply to your case.
What does this mean?
Equal division of the assets will only be deemed fair by the court if both of the parties’ needs can be met.
My ex has inherited some money can I get a share of that?
It depends. In some circumstances yes (it must of course be disclosed to the court). If their inheritance has been mingled with jointly owned assets, for example, to improve the family home or pay off the mortgage. If the inheritance has been kept in their sole name away from the family assets it will only be treated by the court as a resource used to meet needs if the division of the matrimonial assets cannot do so.
What does the court do about children?
The court does not get involved providing you and your spouse have agreed to the arrangements of the children. They do not get involved unless absolutely necessary and there is a dispute between you and the other parent. If correspondence does not work, then parents should agree to attend mediation to try and come to some sort of agreement about the arrangements for the children.
I am a common-law wife/husband/partner do I have the same rights?
This is a common misconception. If you are not married, then you do not have the right to access the remedies that are available to those who are married and who are divorcing.
Taking the advice of professionals is not as costly as you think, for more information please contact Judith Wright on 01772 220022