As a new year begins, January becomes an opportunity for a fresh start and a promise to do something differently. For some, this can simply mean drinking less or hitting the gym more but for others this can mean taking that step of initiating divorce proceedings, and commencing the year with a fresh start in mind.
For this very reason, we now find ourselves on Divorce Day on 9 January; so-named in view of the rising number of new enquiries received by law firms in the post-Christmas period.
There has been a trend to malign these rising numbers to family arguments over the Christmas period. However, more often than not, those new enquiries are not arising out of irreconcilable arguments over Christmas dinner; rather, the trend stems from a desire to start a New Year fresh after coming to a considered and careful decision to separate where reconciliation is not possible.
To help those wishing to take those steps to formally separate this year, this article details advice to ease anxieties and demystify the process.
Q: What should be the first step?
It might sound cliché, but those wanting to start the process of separation should be seeking legal advice at the earliest possibility.
It is great that the Government has introduced an intuitive citizen's portal to help people initiate the divorce process without a solicitor acting for them. However, more often than not, we have found that this has led to problems later, with many not realising that a final divorce order does not automatically end financial claims – even if you have reached an agreement with your partner on how to deal with finances between yourselves. In short, this means that you remain open to financial claims from your ex-spouse or civil partner in the future.
Additionally, a lot of people fail to consider the full spectrum of their families' needs when deciding financial arrangements for themselves – a common example of this is retirement needs i.e. pension arrangements.
It is very important that you speak to a lawyer to make sure that you do not compromise your needs for the sake of reducing tensions and arguments; legal advice will help give you knowledge of your reasonable needs and entitlements.
Q: Has no-fault divorce helped reduce tension?
It will be a comfort to many that we have moved away from having to pin fault on one party or having to wait a minimum of two years' separated before commencing divorce. However, unfortunately, this has not completely removed the opportunity for stress or tension and we have certainly seen cases where those wanting or needing vindication will move their energies to financial discussions or conversations around child arrangements.
Seeking legal advice at an early stage can help offer valuable insight into what a reasonable settlement or practical child arrangements might look like for your family. To ensure the best focus and structure to these discussions, we would always suggest looking for advice from a Resolution-accredited divorce lawyer. Resolution is a community of family justice professionals who work to resolve issues in a constructive and amicable way. All of the solicitors in the family team at Birketts are members of Resolution.
Q: How should we have discussions around finances/child arrangements?
It is never easy to broach this topic and this can bring forth a host of anxieties for many people. If you find that conversations with your partner around the kitchen table have not been as successful as you might hope, then you may wish to consider mediation. This is when an independent third party will help guide these discussions and conversations with you. However, a mediator cannot give legal advice, and so we would always advise that you instruct a lawyer in the background to these discussions to help structure your proposals in line with the court's guidance for fairness. This is especially important for financial arrangements, as the court will not approve a consent order unless it meets their criteria for fairness.
However, mediation is not suitable in every case. For example, if your partner does not communicate well and so you find that you struggle to have discussions on an equal basis, then you may wish to consider solicitor-led discussions. This involves your instructed solicitor writing directly to your partner or their instructed solicitor through the process of financial disclosure and settlement proposals.
It is possible for these solicitor-led discussions to be on a fully collaborative basis, which is where both parties instruct solicitors to agree to work outside of court to reach an agreement and will involve structured four way meetings with you and your respective solicitors to ensure that conversations remain on track to reach agreement. This requires your solicitors to both be collaboratively trained.
Neither mediation nor collaborative law will be appropriate if you are a victim of domestic abuse. However, please be reassured that matters can still be resolved by agreement, outside of court, but it would be best if your solicitor helped navigate those discussions entirely on your behalf to reduce exposure to abusive situations and ensure that your needs are fully and properly articulated.
If you cannot resolve matters by agreement, then you may need assistance from the court to decide the matter for them. However, the court process is long and costly and, in our experience, can lead to an escalation in tensions rather than a reduction. As such, it may be preferable to consider arbitration to help decide the matter on a private basis – which is quicker and sometimes even cheaper than full recourse to the public court system. An arbitrator will make a binding decision after hearing the full evidence of your case – think of an arbitrator like a private judge in that sense.
Whatever your situation, your solicitor can advise you on the best route forward for you to help minimise tension and cost.
At Birketts, we are able to offer our clients solicitors specialised in mediation, collaborative law and arbitration.
Q. What happens once we reach an agreement on finances?
Once you have reached an agreement, your solicitor can draw this up as a consent order that will be sent to the Court for approval. As set out above, it is important that you have legal advice before this point as a Judge may reject a consent order that they do not think meets the statutory criteria for fairness. If you have had a decision made by an arbitrator or Judge, it will be put in a binding Final Order. Once a Final Order has been made in finances and divorce, your financial claims arising as a result of the marriage/civil partnership will be dismissed.
For child arrangements, your final agreement can be set out in a parenting plan. This is a non-binding record of your agreement. The court is very reluctant to approve consent orders for child arrangements that are not already the subject of court proceedings, because there is a general 'no order' principle i.e. an order will only be made if it is in a child's best interests and the court does not consider that always to be necessary where there has been an agreement reached outside of court. However, you should discuss this with your solicitor as the circumstances of your case may warrant a binding order (e.g. if there is issues around international relocation or repeated breaches of a parenting agreement).
Q. Do we have to formally end our marriage?
Many people will want to separate but not formally dissolve their marriage, whether for religious reasons or for personal reasons. In this case, you can discuss with your solicitor entering into a separation agreement, which is a type of post-nuptial agreement, to record the financial agreement. These agreements are not technically binding, but have a significant amount of legal weight if entered into properly with adequate safeguards (e.g. you both have legal advice, there has been sufficient financial disclosure, etc.). Your solicitor can discuss these requirements further as they will differ depending on the complexity of your finances and the agreement reached. As with any financial agreement, for it to have weight in any subsequently brought financial proceedings, it too must have regard to the court's statutory criteria for fairness. As such, an unfair separation agreement that does not properly have regard to a partner/spouse's or child's needs will not be upheld by the court if financial proceedings are brought later to challenge the agreement.
Q: Any final words of advice?
In short, the best way to minimise stress and tension is to seek legal advice to help give your discussions with your partner the right focus and structure in your particular circumstances. This will also provide you with important reassurance that the final agreement you secure will be one that meets your and your family's immediate and long-term needs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.