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21/12/2012 By: Anna Heenan
The twelve days of Christmas are almost upon us and, just to be different, I thought I’d treat you to twelve key facts about family law. Sadly it isn’t chocolate (or even a mince pie) but hopefully these facts will be a helpful starting point to clearing up some of the more common myths and misunderstandings about divorce and family law.
1 - Legally, there is only one ground for divorce: that the marriage has broken down irretrievably. This can be proved in five different ways: adultery, behaviour, desertion, two years’ separation with consent or five years’ separation. “Irreconcilable differences” is not a ground for divorce in England and Wales.
>> Read more about divorce procedure.
2 - There is no such thing as a ‘common law spouse’. Cohabiting couples who are not married have no special protection under the law. This means that claims by couples who live together can be quite tricky and expensive. If you and your partner are moving in together, it is sensible to consider a cohabitation agreement to work out what rights you will each have to your property if you split up.
>> View our video about separation for unmarried couples.
3 - If you were married abroad or one of you has an international connection (and for these purposes Scotland is “international”) then it is important to act quickly. Whoever starts the divorce proceedings gets to choose the country in which the divorce and/or financial issues are dealt with. This can make a big difference to how much you might need to pay to your spouse or how much you might receive from your spouse.
>> Read more about international divorce issues.
4 - It is sensible to get any financial agreement on divorce drawn up into a court order. This will resolve financial claims once and for all. You may not have much in the way of assets or income now but you may do in the future and you are unlikely to want your former spouse to have a claim against them. You don’t have to go to court to get a court order. You can make an application on paper.
>> Read more about the law relating to finances on divorce.
5 - Divorce and sorting out your finances are separate processes but there is some overlap. Most people sort out their finances before they finalise their divorce (and there are very good reasons to do this). Also, you need to reach the decree nisi (halfway stage) of the divorce process so that the court can make a court order dealing with your finances.
>> Read more about immediate financial concerns.
6 - There are lots of different ways you can sort out your divorce and the related financial issues. It isn’t necessary to go to court, and mediation isn’t the only alternative. Other options are collaborative law or family arbitration.
>> Read more about different divorce approaches.
7 - Whatever method you use to agree your finances, financial disclosure (providing details of your financial position) is essential. This can take a number of different forms but the key is to be open and honest about your financial position and include all details, from capital to income to pensions. If you aren't open and honest then you risk your spouse trying to set aside the agreement later. This can be a very expensive process.
>> Read more about your finances on divorce.
8 - If you think that your spouse is hiding assets then there are legal steps you can take, but it is important to take advice and not to help yourself. In 2010, a case called Imerman decided that, once a couple separate, they each have a right of confidentiality of their documents. This means they can’t open each other’s post or other documents (even if they did this during the marriage). Their lawyers aren’t allowed to look either.
>> Read more about hidden assets on divorce.
9 - There is no rule that a married couple should split their assets 50:50. For example, in cases where there are young children and not much money, then the primary carer is likely to get more than 50 per cent. In a case where there is lots of money, then one person might receive more if they brought money in or inherited it.
>> Read more about how your finances might be split during divorce.
10 - Pre-nuptial agreements are not binding but they are now strongly persuasive. It is also possible for couples who are already married to make a post-nuptial agreement, which is treated like a pre-nuptial agreement. The Law Commission is reviewing this area of the law so it is possible there will be further change ahead.
>> Read more about pre-nuptial agreements.
11 - Keep a close eye on other changes to the law that may affect you (ask your lawyer if there’s anything relevant you should consider). For example, the Law Commission is also reviewing the law about financial arrangements in divorce more broadly. In particular, it is looking at the extent to which one party should have to meet the needs of the other on divorce and how the law should treat inherited property or property bought before the relationship.
>> Read about maintenance on divorce.
12 - If your spouse has lots of assets owned by a company, it is important to get advice to make sure you get your full entitlement. This year three wise men in the Court of Appeal (well two - one disagreed) decided that it was only possible to claim against company assets in a company owned by your spouse in very limited circumstances.
>> Read more about businesses on divorce.
Anna HeenanFamily Law SolicitorLeeds