A New Year: Time to take stock

The start of a New Year often makes people take stock and reflect on issues that are causing them concern. Many people see the 1st of January as the fresh start that gives them the resolve to make changes to their lives for the better. It may be to eat more healthily and do more exercise, to recycle more or to spend more time with elderly relatives. The concept of a New Years Resolution is one that is familiar to us all, whether or not we have the willpower to stick to them!

Sadly for some, a fresh start this year will mean bringing an end to an unhappy relationship and moving forwards. It is a commonly known amongst family lawyers that there is a peak in new divorce clients at this time of year and it is a trend that we see year upon year. So, if you find yourself in the position of wanting to take some positive action in terms of your separation and divorce this January and need a little guidance on how to get started, here are some commonly asked questions of our family law experts:

We’ve decided that our marriage is over and want to divorce as amicably as possible. Can we come and see you together? 

It is not possible for a divorcing couple to have the same solicitor, no matter how well in tact their friendship remains after deciding to divorce. This is because a solicitor can only protect one party’s interests. To advise both a husband and a wife would inevitably lead to conflicts of interest. It is possible for one party to have a solicitor and the other to represent themselves but only if the latter is comfortable with the concept that they are not receiving advice whilst their husband or wife will be. When it comes to arranging finances after a divorce, many couples, particularly those who remain on speaking terms, prefer to attend mediation to reach a settlement rather than negotiating via solicitors. A mediation appointment will involve both parties being together in a room with an independent professional mediator who will guide discussions in the right direction towards an appropriate settlement.

How do I start the divorce process and how long does it take?  

If you have decided that you want to petition for divorce against your spouse, the first step is to seek legal advice. Your solicitor will help you to select one of 5 possible options upon which to base your divorce petition. The most commonly used reasons are separation for 2 years with both parties consenting to the divorce, unreasonable behaviour by the respondent and adultery.   Your solicitor will advise which is the most appropriate in your case and beware, the most obvious choice isn’t always the best in your unique circumstances. Once the basis of the divorce has been decided, your solicitor will draw up the paperwork. The petition can then be submitted to court for processing along with the fee of £410. It is possible to claim that fee back from your spouse or to agree to share the cost between you. The court will seal the petition with a stamp and send it to your spouse. At this stage your spouse should engage in the process if s\he has not already done so. If this does not occur and your spouse ignores the papers from the court then your solicitor will advise as to how to deal with this situation.

The second stage is to apply for the Decree Nisi of the divorce. The court will usually process that application fairly quickly and the Decree Nisi will be pronounced in open court although it is highly unlikely that anyone will need to be there to witness this pronouncement. Six weeks and 1 day after the Decree Nisi, you are able to apply for your Decree Absolute, the final stage of your divorce.

Technically therefore, the divorce process could take as little as around 3 months. In reality, however, there are often important reasons to delay the application for Decree Absolute until you have reached an agreement in terms of your matrimonial finances. This process can delay the application for Decree Absolute. In some cases, the delay can be months and even years.

We have children together – where do we stand on this? 

As family solicitors, we will not arrange what happens to your children after separation unless conflicts arise and you specifically seek advice on the matter. It is preferable for parents to manage their own arrangements as far as possible and we would always encourage that. However, we know that this isn’t always possible. There are several ways we can assist:

  • By giving you advice to give you the confidence and tools to make arrangements with the other parent.
  • Corresponding with the other parent (or their legal representative) on your behalf, acting upon your instructions as to what you hope to achieve and giving you honest advice as to whether your aims are realistic.
  • Arranging a mediation session for you both.
  • As a last resort, we can apply to the court on your behalf for the judge or magistrates to hear your case on issues such as child contact regimes or residence.

How much child maintenance do I have to pay? 

If you are a parent who lives away from your children and you have an income then you have a legal responsibility to pay child maintenance. The government provides strict guidelines on how to calculate maintenance. You can review these by following this link: https://www.gov.uk/calculate-your-child-maintenance. Even if you arrange child maintenance between yourselves, generally these are the guidelines to follow. If you cannot agree then one of you can apply to the Child Maintenance Service who will assess you formally and then enforce the payments. There is a fee for the assessment of £20 and a 20% charge on each payment for the paying parent. Therefore, to avoid these charges, we would highly recommend arranging maintenance between yourselves. We are able to give you advice on how to achieve this.

We have agreed how we want to split our assets. Does the court need to know or can we just go ahead with it ourselves? 

You can simply deal with your finances between yourselves without involving solicitors or the court. There are, however, substantial risks to this course of action arising out of the fact that being divorced will not bring an end to your spousal financial claims arising out of the marriage that each of you have. In other words, there would always be the possibility that one of you could come back for more. Another scenario would be if one of you followed through on your agreement and the other failed – as there is no legal framework to your agreement there is no legal breach and therefore little you can do to force the other to comply without issuing legal proceedings for the whole agreement to be reviewed, forcing you back to the beginning of the process. We would always recommend seeking legal advice on any agreement you have reached and then having it drawn up into a legal document called a Consent Order to be submitted to court parallel to your divorce proceedings. A sealed Consent Order will give you the peace of mind that the settlement is final and that if either of you breach it, the court will have jurisdiction to rule.

If you are considering getting a divorce call our family team on 0161 969 3131 and make an appointment to see one of our specialist advisers. We will guide you through the process and give you the best legal advice to suit your circumstances help you decide the best options for you.