29 Oct 2019
What is a variation of spousal maintenance? Solicitor Jonathan Casey explains.Read more
It's commonly supposed that the New Year is a popular time for disgruntled spouses to make enquiries about filing for divorce, and certainly that is true, but for the divorce lawyer, September is equally as busy.
Why might this be so? Often it's down to one or more of three factors:
It's fair to say these factors tend to feature primarily in relationships that are already under strain. And we divorce solicitors also receive queries from couples already separated who, after what might have been a tense summer, seek to change the arrangement imposed on them by a family court.
Although there is movement toward a no-fault divorce in the wake of the case of Owens v Owens, (and that is now in doubt given the current prorogation of the UK Parliament) presently it is not possible to divorce on the basis that you both simply want a divorce. You can’t get divorced quickly because you’re unhappy with your spouse as the present divorce system in the courts of England and Wales, is fault-based, to obtain an immediate divorce.
At present, the one ground for divorce is the irretrievable breakdown of the marriage. However, the court cannot hold that a marriage has broken down unless the one petitioning for divorce can satisfy at least one of the following facts specified in s.1(2) of the Matrimonial Causes Act 1973 applies.
There are two elements that need to be proven when relying on this fact:
Firstly, that the respondent has had voluntary sexual intercourse with someone of the opposite sex. Unfortunately, the law has not caught up with modern society and as such this fact cannot be used in a petition to dissolve a civil partnership, albeit the fact below of unreasonable behaviour can usually be valid.
Secondly the petitioner needs to prove that he/she finds it intolerable to live with respondent. In practice this is a relatively easy element to prove and can be dealt with by an assertion of intolerability being sent to Court in a statement.
In the absence of the respondent admitting adultery or clear evidence to prove the adulterous act i.e. the birth of a child that is not the fathers, you as the petitioner may have difficulty in satisfying the court that adultery has taken place and may be more cost effective and expedient to make an application based on unreasonable behaviour.
Unlike the intolerability element of a petition under adultery, ‘cannot reasonably be expected to live with the respondent’ provides an objective test, and therefore saying you cannot be expected to live with your spouse is not enough.
Whilst it is dependant on your personal circumstances the court will generally look for three to six examples of behaviour which can range from physical violence, verbal abuse and cruelty to demanding sexual intercourse too much, failing to socialise with you and provide money for food/ outgoings. Whilst the court have a wide discretion to decide on which examples of behaviour you wish to rely on, saying you are bored of your marriage or a no longer compatible will unfortunately not suffice.
Again, as with an application relying on the fact of adultery there is a time element of 6 months from the last incident occurring. Whilst a period in excess 6 months is not a complete bar to this fact, the more time that has occurred the more difficulty you will have in satisfying the court to approve the petition.
Some 83% of wives and 73% of husbands initiate proceedings on the basis of unreasonable behaviour, making this the most common reason relied upon.
To prove the fact of desertion there must have been a separation of the parties, this strictly does not have to be in separate properties, what needs to be established is that you have lived completely separate lives. The respondent must have had an intention to desert, that is, bring the marriage to an end, and they must have done so without your agreement to the separation.
Furthermore, the respondent must not have had a justifiable reason for leaving, for example they are in the Armed Forces on leave or away for business, and that time away must have been for a continuous period of at least two years.
Desertion is rarely relied on, owing to the complexity of the application, as invariably another reason that is applicable that is easier to prove.
Where parties have been separated for at least two years, provided parties consent to the same, this reason is effectively the closest we have to a no-fault divorce currently as no reason for the separation is required in the divorce petition.
Where the parties have been separated for at least five years, a divorce can be granted on this basis without the respondent’s consent.
Irrespective of which fact you rely on, should you issue a petition for divorce with the Court there is a fee of £550.
Although there is no legal requirement for you to appoint a solicitor to handle your divorce and prepare your petition on your behalf, people who attempt to conduct their own divorces without the support and advice of a solicitor are often not aware of the issues it could present in the future, particularly those relating to
Finalising your divorce itself is not the only element to separation. Whilst the finances are inextricably linked, a clean break order is required from the Court to severe your link from one another financially. In the absence of getting a clean break order from the court, your spouse - even after divorce - has the capacity to make an application against your estate. Therefore, hypothetically, should you win the lottery post-separation, your former spouse could make an application for a portion of your winnings.
There is one of two ways in which you can resolve finances. If you have reached an amicable agreement with your spouse, you can formulate the agreement into a consent order which can be filed with Court for a judges approval, filing a Consent Order with Court carries a fee of £50 to file.
However, should you be unable to reach an agreement, the other option available is you can make an application for financial remedy proceedings. One of the prerequisites before making application for financial remedy proceedings is that parties attend a Mediation Information and Assessment Meeting (MIAM) before issuing financial remedy proceedings, due to courts' requirement that parties attempt mediation and only use legal proceedings as a final option. The purpose of the MIAM is find out how the mediation process works and to determine whether it is right for you in your circumstances.
If mediation is not suitable, the mediator will sign an exemption form confirming the same. The application for financial remedy proceedings carries a further Court fee of £255, and after the application is made parties receive a Notice of First Appointment, setting down a court-appointed timetable for Court dates, and dates in which various documentation and financial disclosure are required to be filed with Court and served on the Respondent.
Doubtless you won't be surprised when I say your best course of action is to seek the advice of a family law solicitor as soon as possible.
"It is not relevant how long ago the adulterous act itself occurred, the relevant element is when you found out about it."
Aaron Williams, assistant solicitor
10 Oct 2019
We are delighted to announce that McAlister Family Law has been ranked in the prestigious Chambers and Partners, issued today.Read more
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