Divorce, Separation & Financial Settlement
The mechanics of obtaining a divorce nowadays are usually quite straightforward – particularly if both partners feel that the marriage is over. The difficulties tend to lie rather in resolving the related practical issues stemming from divorce – how to separate, where to live, arrangements over the children and financial matters generally.
Your attention will be concentrated on those related issues and the process of actually getting the decree may seem blurred. The purpose of this is to set out a broad framework of the process to highlight key points and to set out the sort of timetable to expect.
Who can file a divorce petition?
Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. It does not matter where the marriage originally took place.
Can I file a petition based on “irretrievable breakdown”?
Yes – in fact this is the only ground for divorce now, but there is a complication. This is that a divorce will only be granted if you can establish one of five facts, laid down by law, evidencing irretrievable breakdown.
Those five facts are:
- Your spouse has committed adultery and you find it intolerable to go on living together
- Your spouse has behaved in such a way that it would be unreasonable to expect you to go on living together
- Your spouse has deserted you for a continuous period of two years or more
- You and your spouse have been living separately for two years or more and your spouse agrees to the divorce
- You and your spouse have been living separately for five years or more, whether or not your spouse consents to the divorce.
If I think my marriage is irretrievably over and that one of the five facts applies, what happens next?
This will depend upon your particular circumstances, but it is often a good idea to try and obtain your spouse’s prior consent to a petition being filed. Your solicitor may be able to reach agreement over the form the petition should take. For example, if your spouse accepts that you should file a petition based on behaviour, only a brief outline of the particular behaviour need be given – not saying all that might be said will not prejudice you in any way.
What does the petition actually look like?
Every petition follows the same form, containing basic information about names, addresses, ages of children etc., and the first ten or so paragraphs simply follow a set pattern. What is in the paragraph dealing with the “fact” evidencing the irretrievable breakdown depends upon which “fact” is in question and whether your spouse has agreed in advance to the petition going ahead. The “prayer” setting out your request for a divorce and notifying your wishes to make claims in respect of finance is also in standard form.
Are financial issues dealt with before the divorce decree is granted?
Sometimes, but very often financial discussions will not have been completed by the time the decree absolute can be pronounced.
If you are applying for public funding in respect of financial negotiations, your application will not be processed for some weeks.
Your solicitor will explain the possible financial effects of the pronouncement of the decree absolute – for example, with regard to national insurance contributions, pension entitlement and protection of your rights of occupation in the matrimonial home if it is not in joint names.
A financial settlement can be reached within divorce proceedings or judicial separation proceedings. Alternatively, a deed of separation which reflects the date of separation and the parties intention to divorce in 2 years’ time will set out the financial agreements reached at the time of separation, which are then put into effect.
When considering financial matters between parties, the first step is always to seek full and frank disclosure of both parties financial circumstances. It is extremely important that we have an understanding which is accurate of the financial circumstances of both parties. Once that information has been received, we look to advise and negotiate a sensible settlement taking into account various factors.
At Ahmad & Williams Solicitors we have a strong team who specialise in financial matters and who will be happy to assist in negotiating financial settlements.