There is only one ground for divorce, and this is the irretrievable breakdown of the marriage. However, this ground has to be supported by one of five facts. These are: unreasonable behaviour; adultery; two years’ separation with consent; two years’ desertion, and five years separation. Today, 99% of divorce proceedings are undefended and the process takes approximately six months.
When a marriage breaks down it is customary to resolve the financial issues between the parties to the marriage. This can be done through negotiation or court proceedings. There are three main issues that the Court looks to resolve: maintenance, capital and pensions.
Maintenance is the level of regular financial support given by one party to the other party for a specified period of time. This is known as spousal maintenance. Maintenance for a child or children is usually not dealt with by the courts but by the Child Maintenance Service (previously known as the Child Support Agency) which has rigid formulas for assessing how much maintenance a parent should pay the other parent as financial support for a child.
Capital involves issues regarding property, savings, shares, etc.
Since 1 December 2000, the court has had power to divide up a person’s pension and transfer it to the other party to the marriage.
It is important that when a couple separate, regardless of whether they are married or living together, proper arrangements are made regarding the children of that relationship, such as their seeing both parents in a safe and secure setting. Often this is done by mutual agreement between the parents, but if an agreement cannot be reached, court proceedings may be required to resolve any disagreement.
Domestic violence involves physical and verbal abuse, as well as threatening, controlling or coercive behaviour, between persons over the age of 16 years. Anyone can experience such behaviour, whether they are a man or a woman. In order to obtain protection from the court, an application can be made for Non-Molestation and Occupation Orders. A Non-Molestation Order will prohibit the abuser from harassing, molesting, or using or threatening violence.
An Occupation Order can exclude the abuser from the home, prevent his or her return, or prohibit them from coming within a certain distance of the home for a specified period of time.
The Civil Partnership Act 2004 introduced, for the first time, the right of same-sex couples to formalise their relationship into a legally binding commitment. A civil partnership needs to be registered, which involves signing a legal document. The process is similar to a registry office marriage. Once a civil partnership is registered, it leads to both parties being subject to legal rights and obligations. A civil partnership can only come to an end if one party dies, or it is annulled or dissolved. When a civil partnership comes to an end, issues such as arrangements for children, financial support and property will need to be resolved.
Pre-Nuptial Agreements / Post Nuptial Agreements
These are agreements entered into either before marriage or after marriage. They deal with issues regarding property, regular financial support and pensions, should the marriage end in divorce. Until the case of Radmacher v Granatino in 2010, such arrangements were not recognised by the English courts. However, since 2010 such agreements have had legal recognition, and in the right circumstances will be upheld by the courts.
The advantages of such an agreement is that it provides a high degree of certainty in the unfortunate event of a divorce; it also helps to reduce tensions during the marriage and the expense of financial proceedings following the divorce.
This refers to people living together in a sexual relationship without getting married or entering into a civil partnership. Currently, there is no one body of law which governs what should happen when cohabiting couples split up, unlike divorce, which is primarily governed by the Matrimonial Causes Act 1973. Unfortunately, the common notion of ‘common law wife/husband’ does not exist in English law.
Therefore, in order to resolve issues over ownership of property, reference has to be made to property law and concepts such as Constructive and Resulting Trusts. This is a complex area of law which requires specialist legal advice.
Mediation is a process whereby separating couples may resolve their issues regarding financial aspects of their relationship, and can make arrangements for the children on an amicable basis, with the assistance of an independent mediator. The advantages of mediation are that the process can be quicker and cheaper than contested court proceedings. The process usually involves a series of meetings over a number of months, to reach an agreement which is acceptable to both parties.
Under a collaborative process, agreements can be reached by parties in relation to financial issues following a divorce, to resolve arrangements regarding children, or negotiate Pre- or Post-Nuptial Agreements. At the beginning of the process, the parties sign an agreement to try to resolve issues without going to court.
Under this process, each person is represented by their own collaborative lawyer at a series of round-table meetings which are designed to resolve issues quickly and amicably. During the collaborative process, the collaborative lawyers may utilise the expertise of independent professionals such as financial advisers, accountants, etc.