This article was authored by Ms Alexandra Tribe .
Coming to the decision that you wish to seek a divorce from your spouse, or learning from your spouse that they wish to divorce you, can be one of the most traumatic times in your life. The initial period following the decision to separate may be filled with uncertainty and a great deal of emotion. This is particularly the case when there are children involved. One of your first considerations are likely to be how to protect yourself and your children during the divorce or separation process.
As well as all of the practical and emotional things to consider as part of the separation, it is vital that you seek advice from a family law specialist. You should do this at the earliest opportunity in order to ensure your legal position in the forthcoming negotiations (or legal proceedings) is as well protected and secure as possible. If you are considering a divorce or separation, as difficult as it may feel, it is always a good idea to seek legal advice before taking any steps to inform your spouse of your intentions.
This article sets out some of the legal points that you may need to consider at the outset, or indeed prior to the beginning of the divorce process. However, every family and every divorce is different. This article should only be used as a guide. It is important to seek advice from a family law solicitor on your own personal circumstances. The examples set out below may or may not be applicable to you and your family and the specific facts of your case.
1: Protect the Family Home
The family home is often one of the key focuses of a divorce. Not only is it likely to be one of the most valuable assets within what family lawyers refer to as the 'matrimonial pot', but it also holds emotional value beyond just being bricks and mortar.
The starting point is to consider whether your home is matrimonial, or shared, in nature, regardless of who paid the initial deposit or whose income was used to meet the ongoing mortgage payments. Who is entitled to keep the family home may not be the person whose name it is held in at the Land Registry.
If you do not own your family home, you may be worried about whether your spouse can ask you to leave. Even if you are not the registered owner of the property at the Land Registry, you may have a legal right to occupy the property by virtue of your marriage or relationship.
In order to protect that right of occupation following the breakdown of the relationship, your solicitor may advise you that it would be prudent to register a matrimonial home rights notice with the Land Registry. This notice will alert anyone looking at the ownership documents of the property about a spouse's rights. It will tell a potential buyer that the person whose name is on the property deeds cannot sell or mortgage the property without the consent of their spouse.
Separately but on a very important note, if you are concerned for your safety and well-being as a result of the breakdown of the relationship, then you should speak to your solicitor about court orders that can be made to protect you and your children. The family court has the power to make orders regulating the occupation of the family home, for example excluding a party if there is a risk of them causing harm to their spouse, whether that be physical or psychological abuse. Further, a non-molestation order can be used to prevent a spouse from harassing, threatening or intimidating the other. If you are the victim of an abusive relationship, whilst it may be difficult to do so, it is vital that you inform your solicitor at the earliest opportunity in order to enable them to help you get whatever protection you may need.
2: Protect Other Properties
If your husband or wife owns further properties in their sole name, there are other forms of protection available which would prevent your spouse from selling or remortgaging those properties without you knowing. Such protection is given by way of various types of notices or restrictions (depending on the situation) which can be registered with the Land Registry.
If your spouse agrees to your interest being noted against the property, then you can apply for an agreed notice. In the event that they do not agree, all is not lost as once financial remedy proceedings have begun, you will be able to register your interest against the property without the owning spouse's agreement by way of a unilateral notice. Your solicitor will advise you as to what is the appropriate application to make to the Land Registry based on your own individual circumstances.
3: Do you need Interim Maintenance?
You may be worried about how you are going to meet your outgoings without the support of your spouse. It is sadly common for a husband or wife to threaten to restrict financial support during a separation. It may be that you are the financially weaker party in the marriage, for example if you do not work and are a stay-at-home mother, and therefore fully reliant on your spouse's income which is now not being shared with you as result of the separation.
In these circumstances, you may be able to apply to seek interim maintenance. Your solicitor will first write to your spouse to try and agree a suitable level of maintenance for you and any children. Interim maintenance is payable by one spouse to another whilst the divorce proceedings are ongoing, and until a financial settlement can be reached or there has been a final order of the court. If Interim maintenance cannot be agreed through negotiations, your solicitor can help you apply to court for a judge to make a decision on the level of maintenance.
In order for your application to be successful, the court will have to be satisfied that you are in real need of financial support from your spouse, in that you are unable to make ends meet without it. Your application should therefore include a detailed breakdown of your outgoings, as well as details of the resources you have available to you. Your solicitor will assist you in preparing this.
Of course, it may be that you do not need to pursue the route of making an application to the court in order to receive interim maintenance from your spouse. You should weigh up the costs of making such an application carefully with your solicitor. If you are able to reach an agreement as to how the family finances are to operate before the divorce is finalised, that is generally a better way forward than immediately resorting to court proceedings. You are likely to save significant legal fees by avoiding a formal application. Also, the divorce process may also begin on a more positive footing if you are able to reach an agreement directly, or by way of a less-confrontational method of dispute resolution, such as mediation.
As part of your interim maintenance application, the court can also order your spouse to make interim payments towards your legal fees. This is called a Legal Services Order. These payments are usually made on a monthly basis, to help you meet your legal costs during the divorce and financial settlement. You can read more about these applications here. Your solicitor will prepare a budget for the work to be undertaken, will forms the basis of the monthly payments from your spouse.
4: Compile Financial Information
Early on in the divorce process, and before any proper negotiations regarding the division of the family finances can take place, your solicitor will advise you that there will need to be a financial disclosure process. This essentially entails both you and your spouse declaring to each other the full extent of your respective financial positions. The disclosure is usually made on a standard form called Form E. You may already know a great deal about your spouse's finances, but the aim of this process is to bring everything out into the open so as to establish what resources there are in the matrimonial pot. Your respective disclosure will therefore include things like the current balances of your bank accounts and credit cards, the value of any investments you may have, what properties each of you own and their values, and your respective pension positions.
This disclosure process can involve compiling a great deal of paperwork. Under the guidance of your solicitor, it is generally prudent to begin this at the earliest opportunity. There are however, very important guidelines from the family court that you must adhere to when reviewing family financial papers. Your solicitor will advise you about these rules in detail.
In essence, you are prohibited from breaching your spouse's confidentiality by reviewing material that they would consider to be confidential to them. In homes where family paperwork has all been kept together, perhaps in a shared filing cabinet, abiding by this rule can sometimes be easier said than done. However, in practical terms, the guidelines simply mean you are not allowed to examine or make copies of any financial documentation belonging to your spouse. These principles are called Imerman rules after the case of that name. Byron James at Expatriate Law has written a helpful guide about what information you can and can't use.
Of course, during divorce proceedings, there is likely to be a certain level of distrust between the parties and this may result in a party being tempted to seek out their spouse's private financial documentation in order to check that they are being fully transparent. However, that would be in direct breach of the court guidelines, and you should liaise very carefully with your solicitor on this subject should you come across any confidential documentation belonging to your spouse.
5. Do you need other Protective Measures?
Our firm often come across cases where one spouse may take it upon themselves to punish the other by way of depriving them financially, for example by spending frivolously or by selling assets or transferring them to third parties in order to take them out of the matrimonial pot and out of their spouse's reach.
If you are suspicious that your spouse may be taking steps to deal with an asset in such a way that would defeat any claim you may have to it, then it may be appropriate for you to apply for a freezing order. This is a protective order that prevents the asset in question from being disposed of whilst the divorce proceedings are ongoing. The decision to apply for such an order should not be taken lightly as this is a complex area of law, and requires a court application.
There are a number of factors that the court must consider when contemplating whether to make a freezing order. Primarily a judge would need to be satisfied that your husband/wife is seeking to sell or deal with an asset with the intention of defeating your financial claim to it. Their intention to deprive you or put the asset out of your reach must be established in order for the application to succeed, and clear evidence of this is required. Further, there is a high duty of candour placed on you, meaning that you must ensure that you are completely transparent and honest in your application and any evidence presented to the court. If you are found not have to have been honest in your application, the court can make costs orders against you.
If your husband/wife has already made the transfer, it is also possible for the court to make an order to set aside a transaction. This is called an 'avoidance of disposition' application. The court can do this if the judge considers that the transfer was carried out with the intention of defeating your financial claim in some way. This is another complex area of law, and if you are concerned that your spouse has taken any such steps as part of their planning for a divorce, then it is vital that you seek specialist legal advice as soon as possible.
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You may wish to read other articles on divorce, finances or children related issues here.
Article originally published May 2020
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.