UK: Divorce - All You Need To Know

The enactment of The Divorce, Dissolution and Separation Act 2020 in April 2022 signalled the end of the requirement of grounds for divorce. The absence of blame in the divorce process saves time, money and more importantly eliminates at least some of the acrimony from the situation. Divorce is an important life-changing event and most people have no prior experience of such an experience. Giambrone & Partners' highly regarded divorce and family lawyers have guided and advised many clients, both in England & Wales and jurisdictions overseas, through their divorce.

Daniel Theron, a partner, commented "couples embarking on divorce will still need the services of a family lawyer to ensure some of the many hurdles they will meet are navigated correctly with no glaring errors or unnoticed loopholes in place ready to cause problems in the future. Daniel further commented "there are many factors that can arise in divorce that can have a significant impact in the future, are not necessarily obvious to the couple. If the couple are able to come to mutually agreeable arrangements they may not consider that things can change over time, particularly if one party remarries and then undergoes a second divorce. A Consent Order will make your agreement legally binding and if there is a breakdown of the arrangement a Court can enforce the terms."

Divorce

There are a number of issues that your lawyer will ensure are managed correctly and prevent an adverse impact on the divorce proceedings. Reviewing the legally valid documents to be presented to the Court, your lawyer will make absolutely sure that all the documents required are present and valid. Failure to produce the correct documents to the Court will considerably add to the costs and delay the divorce.

Similarly, your lawyer will ensure that all deadlines are complied with. Failure to meet deadlines can result in delays in the proceedings, additional expenses, or even the possibility of disadvantages in the outcome of the case.

In some cases, the court may allow extensions to a dealine for legitimate reasons, such as illness or any other unforeseen circumstances. However, repeatedly missing deadlines or appearing to intentionally disregard court orders has the potential to have more serious consequences, such as being held in contempt of court or facing sanctions.

Once your lawyer has established that all aspects of your application are acceptable, the process of divorce can begin.

The Decree Nisi has been replaced by a Conditional Order which is granted after a period of reflection of 20 weeks from the date of the start of the proceedings. This allows the parties a reasonable length of time to consider the consequences of embarking on divorce.

Once the Conditional Order is granted it is followed by a Final Order, around six weeks later, which replaces a Decree Absolute, and the marriage is then at an end.

There are very limited circumstances where a divorce can be challenged, such as questions as to the validity of the marriage. For example, if:

• The marriage service was not conducted legally, if the marriage was conducted in another jurisdiction it is most important to ensure that there is clear evidence that there was no breach of procedure or any other possibility that could jeopardise your application for divorce.
• The parties to the marriage are under the legal age for marriage,
• One of the parties does not have the capacity to consent to marriage,
• One of the parties was forced into marriage,
• The health of one party prevents the consummation of the marriage,
• The parties are close relatives
• Bigamy.

Financial Arrangements

The couple must decide how they would like the matrimonial assets to be divided and whether spousal maintenance is to be paid by one party to the other. Couples are strongly advised to come to a mutual agreement with regard to the division of their finances if at all possible. The assets that can be included clearly depend on the circumstances of the divorcing couple, below is a list of the typical assets that are generally under consideration:

• The matrimonial home
• Matrimonial assets - acquired by the couple during the course of their marriage
• Non-matrimonial assets – acquired by one party prior to the marriage, how such assets are considered depends on a number of factors, such as the length of the marriage
• Inherited assets – if acquired during the course of the marriage they are generally considered to be matrimonial assets especially if the marriage was lengthy.
• Inheritance that is expected in the future is not generally taken into account but in some circumstances the court may delay an order.
• Need – related to a spouse that has always been financially dependent or is unlikely to have the capacity to support themselves.
• Financial assets such as pensions, savings and investments.

The matrimonial home is generally the largest and most important asset for most couples and if there are minor children of the marriage it is likely that the court will permit the custodial parent and the children to remain in the property until the children reach the age of 16 years or have completed their education.

All the financial negotiations must be completed, settled and a Financial Order is in place before the Final Order application is made.

Financial Dispute Resolution

There are various ways that a couple can arrive at a sound financial settlement. Once proceedings have been issued, the Court will list a Financial Dispute Resolution (FDR) hearing, which offers the best chance of swiftly arriving at a solution.

Each party will have to make full financial disclosure about their assets and their financial position and provide supporting evidence and draft a proposed settlement which will be reviewed. The judge's role is not to make a decision but to facilitate the parties to come to an agreement. The judge will give an indication as to the likely opinion that they would come to if they actually were making a decision. The judge's view is a powerful indication as to the possible outcome if the matter has to be decided by the Court. It is also possible to arrange a private FDR, which will follow the same procedure but without issuing financial proceedings.

Both the parties are free to leave the court and discuss the issues further with their respective legal advisors should no agreement be reached at the FDR.

Mediation

Mediation is the another way to arrive at a satisfactory agreement between divorcing spouses if they cannot arrive at an unassisted arrangement between themselves.

The alternative is to revert to the court which is rarely a better option than mediation as it is costly and can be a long drawn out exercise and the final decision is made by a judge and taken out of the hands of the couple. It is also a public arena where all the details of events are discussed. The vast majority of divorcing couples will not have ever previously experienced divorce and may not be aware of what the courts consider a fair arrangement. An expert family lawyer can manage expectations and

provide legal guidance. Mediation is conducted in private and the couple are advised by an experienced lawyer as to what will be considered reasonable and what is in their best interests under the circumstances. The point of view of each party can be examined.

Hybrid mediation offers the opportunity for both parties to attend with an independent mediator and their own legal representative to guide them through the process.

Giambrone & Partners family lawyers have vast experience in conducting mediation between the parties to reach a financial agreement that both parties are happy with. Once an amicable arrangement has been reached by the couple themselves it is unlikely to be amended by the court unless the judge believes the arrangement is unfair to one party.

Child arrangements

It there are children of the marriage under the age of majority, arrangements will have to made for their care, where they will live, education and for their financial maintenance. This is often the most contentious aspect of divorce and can cause the greatest problems. The children's needs should be considered over and above their parents' expectations, their best interests should be paramount.

Joint custody is most frequently granted to parents, with both parents retaining parental rights over the children. The important things to be decided are:

• Custody – determining where children should reside is one of the most crucial aspects of divorce. Custody can be structured as joint custody where the child resides for a period of time with each parent or sole custody where the child resides with one parent and the other parent has visitation rights.
• Parenting plan – this is drawn up to detail all aspects of how the children are to be managed and includes decisions on education, religion, heath care and activities such as sport, music lessons and membership of cadet corps etc.
• Child support – this is determined by the income of each parent, the number of children involved and any specific needs of a child.

In the case of parents having different home countries the question of relocating abroad may arise. This raises the questions of consent and the visitation rights for the non-custodial parent.

Consent Orders

A Consent Order sets out the financial agreement made between the parties and seals the agreement which is then legally binding and crucially prevents either party from making a financial claim in the future unless there are certain exceptional circumstances. Informal agreements arrived at between the parties can easily breakdown and the terms of an informal agreement cannot be enforced.

A Consent Order provides certainty that the agreed terms will be maintained.

A Consent Order can be varied under very limited circumstances such as:

• A failure by one party to fully disclose all their financial assets
• An asset was incorrectly valued in error or due to fraud
• One party was under duress or lacked the mental capacity to comprehend the terms of the Consent Order
• One party was suffering from a mental illness
• An unexpected event occurred such as one party suffering an accident that renders them unable to work.
• Mutual agreement by both parties.
• A judge believes the arrangement is unfair to one party.

Giambrone & Partners family lawyers also have specific expertise in assisting couples with cross-border divorce, financial arrangements and child issues including relocation abroad, parental abduction of minor children. Our lawyers are multi-jurisdictional and act for clients in more than one jurisdiction where cross-border issues arise in divorce, child arrangements and financial settlements, including varying previous arrangements when circumstances alter.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law.

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

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.