Month: December 2023

The holiday season can create a deceptive facade of happiness, with twinkling lights, festive decorations, and a pervasive sense of joy in the air. Couples may find themselves caught up in the illusion of merriment, masking underlying issues that resurface as the season concludes. Stress, financial strain, and unmet expectations can magnify existing problems, prompting some individuals to reassess the state of their union.

This article considers 12 points that you should be aware of if you are considering or are currently involved in divorce proceedings. 

1. No more blame 

Under the new divorce process, which came into force in April 2022, there is no requirement to prove fault as required under the old process, which only allowed applications for divorce where one party was able to prove adultery, desertion, two years’ separation (with consent), five years’ separation, or that their spouse behaved in such a way that they could not be reasonably expected to live with them. Now, one party only needs to state that the marriage has broken down irretrievably under the new process.

2. Apply together

Spouses are able to make applications jointly under the new process, which means that they can complete the application and make their statement of irretrievable breakdown of marriage together.

3. Can I say no?

It is still possible to make an application for divorce alone. Under the old divorce process, a party served with a petition for divorce that wished to contest the divorce could do so when filing their acknowledgment of service with the court. Generally, the option to contest the divorce has been removed under the new process. 

4. It’s all online

Applications for divorce, and each stage thereafter, can now completed via a government online portal, although postal applications are accepted in some circumstances.  

5. The paperwork

When applying for a divorce, you will need your original marriage certificate or a certified copy. Where the marriage certificate is not written in English, you will also need an official translation. If you have had a name change since you were married, such that your current legal name differs from the name on your marriage certificate, you will need to provide proof of the name change. 

6. Previous applications

If you applied for a divorce previously but then reconciled, you must ensure that any previous applications for divorce, whether they were made under the old law or new law, are formally withdrawn before submitting a new application. This is a relevant consideration where an application for divorce was made, following which the parties reconciled, separated again later and wish to make a new application for divorce. 

7. Conditional Order

Once both parties have accepted that the marriage has broken down irretrievably, the parties can apply to the court for a Conditional Order. The Conditional Order is the penultimate stage to obtaining a divorce. This stage was formerly known as ‘Decree Nisi’ under the old process.

8. Finances

Once the divorce process has started, the parties can make an application to the court to resolve their finances. It is only when a Conditional Order in the divorce has been granted that the court has the power to approve a financial agreement.

9. The Final Order

Once a Final Order has been granted, the marriage has been formally dissolved and the financial order becomes effective and enforceable. Under the old law, this stage was known as ‘Decree Absolute.’

10. Obtaining a Final Order before resolving your finances

There are risks associated with obtaining the Final Order in divorce proceedings before obtaining a final order in the financial proceedings. For example, one spouse can lose out on rights to the other’s death in service benefits if they die unexpectedly, there may be additional tax liabilities when they are no longer legally married, or a spouse can lose their rights to make any financial claims on remarriage. It is therefore best to obtain specialist legal advice regarding your finances before applying for a Final Order.

11. Timescales

After the initial divorce application is made to the court, parties must wait 20 weeks before applying for their Conditional Order. The purpose of this ‘cooling-off’ period is to allow the parties time to consider whether they are certain about formally ending their marriage. After obtaining the Conditional Order, the parties must wait a further 6 weeks and one day before applying for the Final Order. This means that now, the divorce process overall takes a minimum of 26 weeks.

12. Counselling

Making the decision to separate or divorce is a serious one that can have long-lasting affects on a family. Sometimes problems that seem unsurmountable can be overcome with some help and guidance.  There are various well known relationship counselling organisations such as Relate that can provide support and impartial advice for couples who may be experiencing difficulties and approaching them may be a first step toward trying to resolve marital disharmony and avoiding permanent separation.

If the decision to divorce has been made, although the new legislation has attempted to simplify the process, there are still various rules and requirements that must be followed to ensure a smooth outcome. Taking legal advice at the first stage of this process often helps to demystify misconceptions about the law and procedure, thus helping to make the journey less stressful and problematic. 

Contact our Family Team at Vyman

In the intricate landscape of divorce, safeguarding assets is a paramount concern. As trusted legal advisors, we recognise the importance of delivering nuanced guidance to our clients. In this edition, we delve briefly into some strategies to protect assets in divorce proceedings under English law.

1. Pre-Nuptial Agreements

Although not infallible, these agreements carry significant weight in English courts and provide a documented framework for asset division. A thoroughly drafted pre-nuptial agreement that meets the relevant criteria can be instrumental in preserving financial interests during divorce proceedings.

2. Declarations of Trust

A declaration of trust is another possible step toward asset protection. These documents record beneficial ownership interests especially in circumstances where there may otherwise be ambiguity in determining the real ownership of an asset. If prepared in a timely manner declarations of trust can help to eliminate doubt and clearly define each party’s share.

3. Loan Agreements

A well-crafted loan agreement prepared prior to any sums being lent not only outlines repayment terms but also serves as a legal instrument protecting the interests of the lending party.

4. Legal Charge

By securing a debt against an asset, parties can introduce an additional layer of safeguarding. A legal charge allows a lender to secure the money they have lent to an individual or a company. It is a legal document signed by the borrower which should be registered against the property at the Land Registry (and companies house, if relevant). A legal charge can also be described as a secured loan and can serve as clear evidence of intention for the lending party.

5. Post-Nuptial Agreements

Post-nuptial agreements are prepared after marriage, offering an opportunity to redefine asset division terms. While their enforceability may vary, provided they also meet the relevant criteria, they serve as valuable tools in addressing changing circumstances and help to reinforce financial agreements within the marriage.

6. Other Trusts

By transferring ownership to a trust, parties may be able to create a protective buffer. Standalone trusts, when appropriately structured, offer flexibility and privacy while safeguarding assets for future generations.

7. Tailored Protective Measures

This may involve utilizing various types of trusts, establishing family investment companies, or employing strategic tax planning. Tailoring strategies to the specific needs of each client ensures the most effective protection.

Conclusion

Navigating the complexities of family law requires a comprehensive and adaptable approach. Our lawyers are specialists in this field and can advise parties as to some of the options available as well as the pitfalls they may face in their specific circumstances with a view to securing their financial well-being both before marriage and/or throughout the challenging process of a potential divorce. As with all financial dealings, it is important that specialist tax and/or financial advice is taken on the implications of any proposed strategy before any final decisions are made.

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Over the past 50 years, there has been a significant amount of evidence showcasing societal changes. One notable change is the increase in couples choosing to cohabit rather than getting married, which was once stigmatised in the early 1970s.

Furthermore, the number of marriages ending in divorce has risen considerably over the years. In 1973, one-third of couples who got married had their marriages end in divorce before reaching their silver wedding anniversary. In contrast, data from the Office for National Statistics reveals that one-fifth of couples who married in 2010 were divorced within a decade.

Given the frequency at which marriages end in divorce, one would expect people to approach marriage more practically and consider the possibility of it ending prematurely. However, data from the Ministry of Justice suggests that this is not necessarily the case. Despite a significant number of divorces in 2021, only a fraction of couples sought financial remedy orders to determine the division of their assets.

Financial remedy orders are crucial in legally separating couples and ensuring a fair distribution of finances. Even if couples can agree on the division themselves, the family court must still approve the agreement for it to be binding. However, many couples choose not to pursue these orders, potentially leaving them vulnerable to future financial claims from their ex-spouses.

The process of obtaining a divorce and finalizing financial matters takes time, even with the introduction of ‘no-fault’ divorce. Recent data shows that divorces concluded between January and March of this year took an average of 64 weeks from the initial application to the final order, an increase from the previous year.

It is important to note that divorce and financial remedy orders are governed by different legislation, resulting in a lack of synchronization in the data. Nevertheless, many individuals may be separating without obtaining a financial remedy order, which family lawyers view as concerning. These orders serve as a ‘financial full-stop,’ preventing one party from making future claims on the other for support.

Even if couples believe they do not have sufficient assets to merit a financial remedy order, it is crucial to consider the potential for future changes in circumstances. Whether through a successful business venture, inheritance, or winning the lottery, ex-spouses can still demand a share of these newfound assets.

Real-life cases such as Wyatt v Vince (2015) UKSC 14, in which Kathleen Wyatt successfully claimed against her ex-husband nearly 20 years after their divorce, highlight the importance of financial remedy orders. Wyatt received a substantial settlement after her ex-husband became a multi-millionaire through his business ventures. To read the Supreme Court judgment in this case, click here.

It is unlikely that a change in the law regarding financial settlements on divorce would eliminate the potential for such claims. Therefore, the solution lies in educating couples about the financial implications of marriage and cohabitation. Just as pre-nuptial agreements have become more common across various demographics, financial remedy orders should not be limited to the wealthy.

Family courts have the authority to make substantive orders regarding property, cash, pensions, and maintenance. Undertakings can also cover various agreements, such as life insurance payments or specific expenses related to children. It is advisable to include any important matters in a financial remedy order to ensure a comprehensive settlement.

Even individuals with limited financial resources at the time of separation should consider obtaining a financial remedy order. None of us can predict the future and failing to secure such an order can lead to unexpected and costly shocks when least expected. It is essential to definitively move on with life and avoid potential financial hardships down the line.

Contact our Family Team at Vyman