DIVORCE LAW IN ENGLAND

Divorce in England & Wales is currently granted on the basis of the irretrievable breakdown of the marriage. We say ‘currently’ because there are recurrent proposals to amend the law which is unsatisfactory in many ways. Please note that ‘irreconcilable differences’ is not one of the reasons for divorce. There is no ground for divorce known as irreconcilable differences. There are currently five grounds for divorce which can be relied upon as evidence of the irretrievable breakdown of the marriage:-

(1) Adultery
(2) Unreasonable behaviour
(3) Desertion
(4) Two years’ separation with consent
(5) Five years’ separation without consent

Although divorces based on the last three grounds are by no means uncommon, in practice most are based either on unreasonable behaviour or adultery. The reason for this is that neither of these two grounds involve the wait which the other grounds involve. When a marriage breaks down it is not usually too difficult to find some instances of unreasonable behaviour on either or both sides and so this is, not unnaturally, seen as a route to a quick divorce. Once at least one spouse has become convinced there is no future to the marriage he/she usually prefers to end it sooner rather than later. Indeed, there are good reasons not to delay.

One very common reaction when, say, a husband receives a divorce petition based on unreasonable behaviour is something along the lines of, “Why, you’ve been quite as unreasonable as me and so I’m going to defend it and issue my own petition.” It is important to understand that the reason for the divorce has, in the overwhelming majority of cases, no impact whatever on the other two issues which may need to be resolved – the questions of financial provision and/or any disputes affecting residence or contact with the children. These two latter issues are quite separate and dealt with completely independently of the divorce and using quite different criteria.

Once this has been explained that the reason for divorce is not relevant in divorce laws it is normally possible to allow it to proceed without acrimony and neither party need ordinarily attend court. It is, however, often a tricky issue to handle at the outset and, although it is perfectly possible to have an “amicable” divorce and very many people do so each year, the way it is dealt with in the initial stages can have a major impact on what happens later. Unfortunately, there are a number of matters on a divorce petition whose meaning is not immediately obvious to a lay person and these technicalities often cause difficulties where there need not be any. Indeed, it is very often the receipt of the divorce petition and the “Acknowledgment of Service” which prompts a client to consult a solicitor for the first time about a divorce.

In point of fact it is rarely possible to defend a divorce for two main reasons. Firstly, the fact that one party to the marriage has presented a divorce petition is a clear indicator of a serious breakdown in the relationship. Secondly, Legal Aid is hardly ever available to defend a divorce mainly for the reason given above. Although divorce petitions can be contested that is uncommon and most solicitors would only recommend such a course if there was some clear advantage to be gained by doing so. Such cases are rare although very occasionally there are good reasons to file a cross petition.

There are, however, other issues which very often depend upon divorce and most people contemplating issuing a divorce petition or who have received one should very likely take legal advice so that they fully understand the position and the issues involved. The one which causes the greatest number of disputes is almost certainly  the one of resolving the financial issues arising from the marriage – what is to happen to the former matrimonial home, whether and how any pensions should be shared etc. There are also specific issues about divorce of concern to men in particular to which some attention needs to be paid if the husband is not to come out of the process feeling aggrieved and regarding himself as the victim of injustice. And, of course, most people want to know that the costs of a divorce and the time scale are. This latter point can be especially important if one of the parties wishes to remarry. Finally, there is the remote possibility that a decree of judicial separation might be more appropriate than a divorce but one should reflect very carefully indeed if one is ever presented with this latter option. Frequently it is suggested but it is rarely appropriate.

Adultery as a ground of divorce

Adultery as one of the reasons for divorce in England is a well used ground for divorce because, like unreasonable behaviour, it offers quick divorce where it applies whereas the other three grounds for divorce involve compulsory long delays. Naturally, adultery is only relevant as a ground in UK divorce law where that has actually taken place. If there has been no adultery then the only other ground for “instant” divorce is unreasonable behaviour.

Incidentally, adultery involves sexual relations between one party to the marriage and an outside party of the opposite sex. If the sexual relationship is with a member of the same sex or if the relationship is not sexual that is not adultery. The appropriate ground on a divorce petition in such cases would be “unreasonable behaviour”.

Another thing which is worth bearing in mind is that adultery is only available as a ground for divorce to the so-called “innocent” party. The person who has committed the adultery is not able to obtain a divorce on that ground unless his/her spouse is also guilty of adultery. This can sometimes cause significant problems. For instance, the person who has committed the adultery may well want to obtain a divorce and remarry but his/her spouse may refuse to grant a divorce on the grounds of the adultery. The usual answer to this is, “Well, you can either divorce me on the grounds of my adultery or I will divorce you on the grounds of your unreasonable behaviour.” This may be problematic if there has been no unreasonable behaviour but the threat is often enough to resolve the impasse. In point of fact when a marriage breaks down there almost always is sufficient unreasonable behaviour for a divorce petition.

It should also be remembered that there are time limits involved in adultery. A person who intends petitioning for divorce on this ground must do so within six months of becoming aware of the adultery (which is not the same as within six months of it taking place) otherwise he/she is taken to have “condoned” it. This is rather a quaint word but the reality is that many marriages can survive adultery and the law merely recognises the fact. However, this six months period only applies if the parties continue to live together after the discovery. If they have not lived together for more than six months after finding out about the adultery then this time limit is not relevant.

When people first become aware of adultery they are very often outraged and one of the first reactions may be to seek revenge. This is natural enough but one should be wary of the temptation to name the Co-Respondent (the outside party) in the divorce petition. This is because (a) it is not actually necessary to name the Co-Respondent and (b) not naming the Co-Respondent usually makes the divorce process easier. The reason for this latter is that if the Co-Respondent is named the divorce petition needs to be served on him/her. There can sometimes be difficulties of service when there is only one person to serve. To add to the number of people who must be served with the divorce petition merely doubles the chance of difficulty. The Petitioner should also bear in mind that the Co-Respondent has no particular incentive to co-operate by returning the papers to the court and this is exacerbated by the fact that that the person guilty of the adultery and the Co-Respondent may be ordered to pay the costs of the divorce by the court if there is no agreement to the contrary. Few people accept that cheerfully.

Strangely enough, there are often unexpected advantages in obtaining a divorce based on adultery. Such divorces are very often not “amicable” for obvious enough reasons. Nevertheless, what sometimes happens is that the person who has committed the adultery either (a) feels guilty and/or (b) wants to remarry quickly. Each of these factors can  lead to them agreeing to a financial settlement more unfavourable to them than they might otherwise have done. Although it may be scant consolation for a broken marriage the truth of the matter is still that either of the above two factors can lead to a more favourable financial settlement for the “innocent” party. If such is the case it is sensible to profit from the opportunity while it lasts because very often attitudes harden if the impulse is not acted upon quickly. This does occasionally present unexpected opportunities for resolving financial matters very quickly and favourably.

Incidentally, it is particularly important to be alive to this possibility because in UK divorce law the courts care not a jot that one of the parties to the marriage has committed adultery if they are asked to decide upon any matter relating either to the financial aspects or to the children. The fact of adultery is irrelevant to either of these legal decisions and the days of the courts “punishing” someone for adultery in questions involving child custody or settling the finances or whatever are long since over. One must therefore be particularly aware of the psychological rather than strictly legal advantages of this ground for divorce.

Unreasonable behaviour as a ground of divorce

As one of the reasons for divorce unreasonable behaviour is the most common ground for divorce in UK divorce law and solicitors are frequently asked what constitutes “unreasonable behaviour”. As you will already know, divorce in England & Wales is based on “irretrievable breakdown” of the marriage but this breakdown must be proved by evidence of one of five “facts”:-

(1) Adultery
(2) Unreasonable behaviour
(3) Desertion
(4) Two years’ separation with consent
(5) Five years’ separation without consent

Three of these grounds – desertion, two and five years’ separation – involve considerable periods of delay before obtaining a divorce is possible at all. At least two years in the case of the first two and five years in the case of the last. Similarly, the parties cannot rely upon adultery in a divorce petition if there has been none. This means in a divorce unreasonable behaviour is the method of choice for most couples who want an “instant” divorce in cases where no adultery is involved.

In the divorce process people often approach a solicitor and say they want a divorce based on “irreconcilable differences”. This happens so often that it is perfectly obvious that there are very many couples in this position. They are in an unhappy marriage and want to bring it to an end. This is perfectly natural and understandable. Nevertheless, it is not possible to obtain a divorce based on “irreconcilable differences”. We think that is wrong but there it is – what UK divorce law demands is rather different. There are recurrent proposals to change the present requirements.

To obtain a divorce on the ground of unreasonable behaviour English law insists that (a) that the marriage has broken down irretrievably and (b) that one of the parties to the marriage has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her. Or, at least, that is what it requires if divorce is sought on the ground of unreasonable behaviour. Although this sounds rather a difficult thing to prove the reality of the matter is that the courts do not set a very demanding standard and in practice it is not normally too difficult to find some examples of “unreasonable behaviour” sufficient to satisfy a court that a marriage has broken down. The courts adopt a realistic attitude. They know that if one party to a marriage feels so strongly about it as to issue a divorce petition the marriage has irretrievably broken down so far as that person is concerned and it would be futile to pretend otherwise. The courts therefore adopt quite a relaxed attitude to the exact type of “unreasonable behaviour” which one has to allege in order to get the divorce. It is important to understand this.

It is a pity that couples are forced to make allegations of unreasonable behaviour because there are very many cases where the couple has simply drifted apart and they do not really hold any especial animosity towards one another. They do, nevertheless, want to obtain a divorce now rather than in two years time. They are therefore obliged to fall back on “unreasonable behaviour” if there has been no adultery. If they want an “instant” divorce one of them must divorce the other on the grounds of unreasonable behaviour. Really it does not matter who does it. People often think that if they do not “defend” a divorce based on unreasonable behaviour they will suffer in some way when it comes to the division of the matrimonial property and/or any questions relating to the children. In point of fact, the reason for the divorce has no impact whatever on these two latter issues in the overwhelming majority of cases and so there is no reason to be concerned about it. However, this is something which does need to be explained and it often has to be explained carefully.

Do please continue if you want to know more about unreasonable behaviour as one of the grounds for divorce.

Unreasonable behaviour as a ground of divorce (2)

As one of the reasons for divorce in UK divorce law unreasonable behaviour is by far the most common. The main reason for this is that it allows quick divorce. Three of the other grounds involve delays of between 2 and 5 years and the other, adultery, may not apply in every case. Divorce advice for men typically does involve explaining that you do not need wait for your wife to issue a divorce petition. Almost all spouses can in practice rely upon unreasonable behaviour as a ground for divorce.

Do bear in mind that divorce is private. Details of unreasonable behaviour in an undefended divorce petition are not divulged to the general public and so no-one but the parties themselves need ever know what was in the petition. Divorce proceedings and the reasons for the divorce are private. Indeed, it is quite common for the Respondent (the person who receives the petition as opposed to the person who issues it) to agree not to defend the divorce on condition that no use is made of the lack of defence to allegations of unreasonable behaviour in any other proceedings (such, for instance, as those relating to children or the matrimonial property).

The Respondent might also want to make it a condition of not defending that there is some agreement as to who bears the costs of the divorce and the reasons for this are explained on the relevant page about divorce costs.

Very often clients ask what constitutes “unreasonable behaviour”. Obviously, it covers extreme types of behaviour such as habitual drunkenness or violence but it is by no means necessary to allege anything near as serious in a divorce petition. In fact, because no-one likes receiving a petition based on their unreasonable behaviour, it is very often sensible to keep the allegations to the bare minimum that will suffice to obtain the divorce even in circumstances where very much more could be added. A few paragraphs are normally sufficient and in a case where a marriage has in fact irretrievably broken down it is unusual not to be able to find some instances of unreasonable behaviour which will suffice for the purposes of obtaining decree nisi. It is important to understand that the courts are not too demanding about this – particularly where both spouses want a divorce.

Naturally, if the parties are not agreed on divorce the requirements of the courts are stricter because the allegations will be subject to scrutiny but in the overwhelming majority of cases the allegations are unchallenged because very few divorces are ever defended in fact.

Something which it important to bear in mind is that there are time limits involved. In general one must present a divorce petition within no more than six months from the last incident of unreasonable behaviour relied upon if the parties are continuing to live together. There are two explanations for this. Firstly, it is perfectly easy to accept unreasonable behaviour and many people do. For instance, if both parties are heavy drinkers and have been so throughout their married lives it would lack any credibility if one of them suddenly decided to petition for divorce based on the other’s heavy drinking. The second reason is rather more important because it does sometimes catch people out. It is that it is a rule of law.

Perhaps this is best explained by example. Suppose a husband hits his wife and as a result the wife decides that the marriage is over but does nothing about it. She continues to live with her husband but there is no further incident of violence. At any time within six months from being hit by her husband the wife could present a divorce petition based on this incident if unreasonable behaviour if she wished but once they have lived together for more than six months afterwards she can no longer rely on this incident (although she might be able to refer to it as part of a pattern of unreasonable behaviour).

However, this rule only applies if the parties continue to live together after the latest incident of unreasonable behaviour. If the wife in the above example had immediately left her husband after being hit and gone to live with her parents she could still issue a petition based on her husband’s unreasonable behaviour in hitting her even though more than six months have passed since the incident. Even in this case, though, one should not wait too long. There gets a point where one simply cannot credibly complain about the behaviour of one’s spouse if he/she is not actually there to be unreasonable. If it looks as though six months since the last incident of unreasonable behaviour occurred will soon elapse it is normally sensible to consider whether one should petition for divorce rather than wait any longer.

If one leaves it too long the parties may then have to wait two years from the date of the separation before one of them can issue a divorce petition based on two years’ separation. And this is dependent upon the other’s consent. If that consent is not forthcoming the person who wants the divorce may have to wait until the separation has lasted five years unless in the meantime his/her spouse relents. This can be extremely awkward if the reason for wanting the divorce is to remarry so it is worth bearing these formal and practical time limits in mind. They do sometimes catch people out and to our mind they are defects in the law but they are defects which can have very inconvenient consequences if one of the parties wishes, for example, to remarry but the opportunity for relying on unreasonable behaviour has passed.

People often think they can get a divorce based simply upon “irreconcilable differences”. The truth of the matter is that this usually means “unreasonable behaviour” and in order to obtain a divorce on the ground of unreasonable behaviour one has to comply with the rules applicable to that particular ground including any time limits.

Desertion as a ground of divorce

As one of the reasons for divorce in the UK desertion is a little used ground. There are good reasons for that.

If one party to a marriage “deserts” the other for a continuous period of two years then it is possible in UK divorce law to seek a divorce on this ground. For instance, a husband or wife might just say, “I’m leaving you”, and walk out. After two years have passed this would be sufficient to found a divorce based on desertion once there has been a continuous period of two years of living apart.

In practice as one of the grounds for divorce it is not much relied upon because it is often difficult to prove. For example, the husband in the above instance might say nothing and just go to work overseas for a period of two years. This may or may not be desertion. If at the moment of leaving the husband had the intention of never returning then it would qualify as a period of desertion from the moment he left. On the other hand, he may not have formed this intention until he had been absent for a year. In this latter case he could only be considered to have been in desertion for a year. After all, spouses can and do work overseas or away from home. It can be seen that enquiries of this nature into someone’s intentions and the absence of corroborating proof of this intention does make relying on this ground quite difficult in practice. More often than not a couple in this situation will either seek a divorce on the grounds of two years’ separation with consent or the spouse who was left at home will petition within six months of the departure on the basis that it was unreasonable behaviour for him to have taken such a job without consulting her. Factors such as these illustrate why this ground for divorce is relatively uncommon.

In divorce in England it is proving the intention to desert which causes the difficulty if you rely upon this ground for divorce in a divorce petition. It is also fair to say that people do not usually realise that a delay of two years is necessary before one can issue a divorce petition on this ground. The desertion must last two years before it can be relied upon as a ground for divorce. This also rules it out as a ground for a quick divorce and contributes to making it an infrequently used choice.

Two years’ separation with consent as a ground of divorce

As one the five reasons for divorce in England two years’ separation with consent is the one which lends itself best to the so-called “amicable” divorce. There are no allegations of behaviour made and the matter must necessarily proceed by consent. All that is necessary is that both parties must have lived apart for two years, that one petitions for divorce and that the other consents. It is quite simple and rarely causes any problems subject to one major caveat. It is that before presenting a petition on this ground it is prudent to make sure that such consent would be forthcoming. It is very unwise to assume there will be consent. Before using this ground you need to be sure.

If there is no consent then the parties must live apart for five years before one of them can seek a divorce against the other’s will. Please note that there are no formalities about separating. ‘Legal separation’ is something of a misnomer. A separation does not have to ‘registered’ anywhere and separation is different from judicial separation. Separation just means living apart. That is all.

There are perhaps two other things which should be said about this ground for divorce. The first is that it is frequently suggested that the spouses should live apart for two years and then petition for divorce. In fact if the marriage has broken down beyond repair it is rarely a good idea to wait for two years before ending it. If one has a choice in the matter then it is almost always better to issue a divorce petition sooner rather than later. There are two pitfalls involved in waiting:-

1. Divorce after two years’ separation is based on consent. It is not uncommon when those two years have elapsed for that consent to be withheld (for all sorts of rational and/or irrational reasons). If that were to happen then the other spouse might have to wait until they have been separated for five years before he/she can obtain a divorce without consent. Five years is a very long time to wait.

2. It is important that to understand that the courts decide financial
issues between divorcing couples as at the time they are asked to decide and not as at the time of any separation. This means that assets acquired after separation may be taken into account. This offends most people’s sense of justice but it is the way the law works and it is important to be aware of it. Therefore by not seeking a divorce sooner rather than later a person is potentially taking a gamble on the future. Most people do not want to take that risk.

There is a  point worth stressing in respect of this ground for divorce. It is that before relying upon it you must be absolutely sure that the consent will be forthcoming from the other spouse. If the consent is in any way conditional – such as, ‘Sign the house over to me and I will consent’ – then that quickly results in an impasse. It is a waste of time and money to rely upon this reason for divorce if there is the possibility of that type of thing happening. It will not result in a quick divorce. In fact quite the opposite. This ground for divorce is best used when two years separation have already elapsed and both spouses really are agreed. If the marriage has recently broken down then it is usually very bad advice to wait for two years before seeking a divorce. It is almost always better to issue a divorce petition immediately rather than wait two years.

Five years’ separation as a ground of divorce

As one of the reasons for divorce in England five years’ separation without consent is something of a last resort. If a marriage has irretrievably broken down and the parties have lived apart for a continuous period of five years then either party may seek to obtain a divorce regardless of whether the other party consents or not. It would be obviously wrong for one of the parties to a marriage to be able to keep alive the empty shell of a marriage after such a long period of marital separation if the other wanted to bring the marriage to an end by divorce. Very frequently, of course, the reason why a divorce is desired at all is to enable remarriage and this cannot happen until the first marriage has been formally brought to an end. This ground of divorce is necessary as a ground of last resort. Sometimes people refuse to give their consent to divorce for religious reasons and sometimes they refuse just to be difficult. If there were no remedy in this situation it would cause great unhappiness. As it is, the period of five years may be thought much too long by many.

Really it is better not to get into this type of situation and to seek a divorce immediately you realise that the marriage has broken down beyond repair. That is because it is important to realise that it is not always possible to obtain a divorce even on this ground.  Parliament has provided a specific defence to petitions based on five years’ separation in very limited circumstances. In practice this defence can rarely be made out but it is important to realise that there is no absolute right to a divorce even after a separation of five years.

A court can in fact refuse a divorce on this ground if the person opposed to the divorce can establish that to grant the decree would cause her (in almost all cases the defence is mounted by the wife although it is not theoretically limited to wives) “grave financial or other hardship and that it would be wrong in all the circumstances to dissolve the marriage.” Normally this defence applies in cases of long marriages where the wife is elderly and where she would suffer deprivation of, for example, substantial pension benefits if the divorce went though. It is a difficult defence to make out and such cases are rare but there is a defence even to this ground of divorce of last resort if one meets the necessary criteria.

More commonly the complication with this ground for divorce is that the other spouse cannot be found. It is still possible to have a divorce on this ground whether the other spouse can be found or not. However, if the other spouse cannot be found it almost invariably increases cost and delay because of the additional steps a court requires in those circumstances.

People do ask if the separation needs to be registered or recorded in any way. That is one of the reasons they often refer to a legal separation. However, no registering or recording is necessary. Separation is a matter of fact. You have either been separated for a period of time or not.

Judicial Separation

Judicial separation is more than just husband and wife living apart. Should you separate or seek a divorce? People in the UK often talk about legal separation without necessarily being too precise about what exactly they mean. Usually it just means that they want to live apart from their spouse but that they want some formality to the separation so that they can each pursue their own lives. In fact, there is a remedy available from the family courts called a decree of judicial separation. This is not a divorce and the parties remain married but, in effect, there is marital separation. All the normal marital obligations come to an end.

A decree of judicial separation can be granted for any of the grounds which would justify a divorce – unreasonable behaviour, adultery etc – but it is not necessary to prove that the marriage has irretrievably broken down. Also, there are not two decrees as there are in divorce – decree nisi and decree absolute – but simply one decree pronouncing the judicial separation once the court is satisfied that the requirements are met.

A decree of judicial separation has three main effects:-

(1) The spouses are no longer obliged to live together;

(2) The court can exercise all the powers which it has to divide the matrimonial property etc just as it can in the case of a divorce; and

(3) The decree operates just like a divorce in terms of its effect on any will – the spouse no longer takes any benefit unless a new will is made specifically stating that is to be the case.

It is almost certainly the second of these which is the most important in practice but it should be appreciated that the number of decrees of judicial separation which are awarded every year is miniscule in comparison to the number of divorces (and decrees of judicial separation are almost exclusively granted at the request of wives rather than husbands). There seem to be three more or less valid reasons why the parties to a marriage may seek a decree of judicial separation rather than a divorce:-

(1) At least one of the parties to the marriage is opposed to divorce for some reason – typically for religious reasons.

(2) There is an absolute bar to divorce within the first year of a marriage and so judicial separation may be all that is available if the parties are determined to formalise the break by court proceedings within that first year.

(3) For some reason it may be difficult to prove the irretrievable breakdown of the marriage necessary for a divorce.

It has to be said that unless both parties to the marriage are opposed to a divorce for religious or conscientious reasons it is difficult to see how it can ever be in anyone’s interest to consent to a decree of judicial separation rather than a divorce. If a wife (and it is normally the wife) wants to obtain a decree of judicial separation and the husband does not have any religious difficulty about obtaining a divorce he should almost certainly be advised to seek a divorce rather than acquiesce to a decree of judicial separation.

The reason we say this is that when a marriage has broken down it is not usually difficult to find sufficient grounds for divorce on the basis of unreasonable behaviour. The courts are not demanding in their requirements and it is extremely difficult to defend a divorce petition successfully. Except in the first year of marriage it is almost always possible to obtain a divorce if that is what one spouse wants.

It would be possible for the parties to obtain a divorce after they have lived apart for two years if they wished provided that they both consented but the reality of the matter is that a person who seeks a decree of judicial separation rather than a divorce is very unlikely to consent to a divorce at all – whether in two years or five years or any number of years. A great deal can happen in such a period of time – not least the possibility that one party to the marriage might meet someone else and wish to remarry. If at that point one is confronted with someone who is still technically your spouse who resolutely refuses to grant you a divorce (and such a refusal is almost inevitable in these cases) then there are very real problems. It is better not to put oneself in this position. No-one should contemplate a judicial separation without realising that it might prevent them remarrying for a very long time indeed. If, ‘how long does divorce take?’ is important to you (and it might become important during the course of the separation) then do not even consider judicial separation.

Judicial separation is often put forward by one spouse but it is very rarely a sensible course of action to agree to. For most people divorce would be a much better choice because judicial separation does not really allow people to move on with their lives.

If you have a spouse who proposes this you would be very wise to seek legal advice before agreeing to it. A judicial separation is rarely a sensible solution. Also for a married couple to simply separate without seeking either a divorce or a judicial separation is hardly ever wise. Please continue to find out more about simple separation and why it is rarely a good idea.

Simple separation

Judicial separation is different from separation. If you are thinking of a legal separation from your spouse or of a separation before divorce then take legal advice first. If you are already separated then you would be wise to seek legal advice about getting a divorce as soon as possible. We cannot over-emphasise the importance of this advice.

The first point to mention is that people often talk of a ‘legal separation’. What they usually mean by that is that they simply separate. That is all. It is possible to have a judicial separationbut that is something very different (and hardly ever advisable). Often when spouses separate they do so because they think they do not have grounds for divorce and so they intend to wait until they have been separated for two years in order to get a divorce based on two years’ separation. This is a mistaken belief. And it is a mistaken belief which can have expensive consequences.

There are many reasons why, if a marriage has broken down, it is a bad idea just to separate. A simple separation rather than a divorce can lead to many problems. First, please understand that if a marriage has broken down beyond repair it is almost always possible to issue a divorce petition immediately. You do not need the permission or co-operation of your spouse and you do not need a qualifying period of separation before seeking a divorce. There are good reasons for divorce in almost all cases of marriage breakdown. If you absolutely cannot live with your spouse then any separation should only last long enough for you to organise a divorce. You should not allow the separation to stretch into months or years unless you have very good reasons for doing so (and have taken legal advice to confirm that it is sensible because it hardly ever is).

Separation is often suggested by one spouse, perhaps as a ‘trial separation’. It may suit that spouse but it is very rarely a wise choice for the other.

The first thing to realise about simply separating is that it is all too easy to let that situation drift into a separation which lasts for many months or years. Pressure to resolve the situation will seem to have disappeared. However, you will not be able to move on with your life and your spouse will still be your next of kin so will very likely inherit in the event of your death regardless of whether you subsequently set up home with someone else.

And, remember, your spouse will continue to be a stakeholder in your income, capital and pension. It is important that you understand the courts decide financial issues between divorcing couples as at the time they are asked to decide and not as at the time of any separation. This means that assets acquired after separation may be taken into account. This offends most people’s sense of justice but it is the way the law works and it is
important to be aware of it. Therefore by not seeking a divorce immediately you are potentially taking a gamble on the future. Most people do not want to take that risk when it is pointed out to them.

You will probably think that when you have been separated for two years you will be able to have an ‘amicable divorce’ on that ground. You must understand that divorce after two years separation is based on consent. It is not uncommon when those two years have elapsed for that consent to be withheld (for all sorts of rational and/or irrational reasons). If that were to happen then you might have to wait until you have been separated for five years before you can obtain a divorce without consent. Five years is a very long time to wait. Separated spouses do in fact very often withhold their consent to a divorce based on two years’ separation. Or, to be more precise, they may make their consent condtional on financial terms which are wholly unreasonable. You do not want to find yourself in that type of situation.

Finally, and this does happen more often than you may think, you may lose touch with your estranged and separated spouse. Not being able to locate the other spouse can cause a great deal of delay and complication in getting a divorce even when seeking a divorce based on five years’ separation.

We cannot stress too much that you would be wise to seek legal advice if you are separated or thinking of separating from your spouse. Separation usually results in the very opposite of a quick divorce and can lead to many unnecessary and expensive complications.

Divorce advice for men

In UK divorce law divorce advice for men is about managing expectations. It is a very common scenario in divorce in England that the house is transferred into the wife’s sole name, the children live with the wife and the husband pays maintenance for the children until they leave full time education while perhaps at the same time losing meaningful contact with them. All too often the man feels he has lost everything under such circumstances – wife, home and children – and that what he has spent years building up has suddenly been snatched away from him.

This situation can be made to feel a great deal worse if the man feels the wife has been to “blame” for the break-up if, for instance, the reason for divorce has been adultery. He very often feels that this “fault” ought to be taken into account in some way.

To understand why divorce seen from the husband’s perspective is often different it is important to know precisely how the divorce process works. There are, in effect, three separate and distinct issues.

Firstly, there is the divorce itself. This is the process by which the marriage is brought to an end so that the parties are free to re-marry. The conclusion of this process is the decree absolute.

Secondly, there is the process by which the marital assets are divided and financial provision is made for each spouse and any children.  This is often the most contested part of the divorce process and it is very much the central issue in many divorces. This part of the process may go on long after decree absolute has been granted.

Thirdly, there may be proceedings relating to children – the custody of children, contact arrangements with the absent parent etc. Very often matters relating to children are resolved amicably and by agreement which is by far the best way. But if they are not and a court is asked to decide questions of residence and/or contact these proceedings can be very bitter indeed.

1.THE DIVORCE

It takes two people to make a marriage. This may seem obvious but it has a very important consequence: if one of the spouses decides that the marriage is at an end then, effectively, it is. There is no way round that fact. Parliament and/or the Courts can establish various criteria which have to be met before a divorce can be granted and those criteria can be more or less demanding but no-one outside the marriage can force husband and wife to make it work if either think it has broken down.

For that reason it is extremely difficult to defend a divorce. The very fact that one of the parties has presented a divorce petition is a reasonable indication that at least one of the parties to the marriage thinks it is over. There are some very limited circumstances under which one spouse can prevent the other from getting a divorce but cases which fulfil such criteria are very rare. In practical terms the vast majority of husbands cannot prevent their wives obtaining a divorce (and vice versa). And within the context of men and divorce it is worth pointing out the most divorce petitions are issued by wives.

Defending a divorce petition would almost invariably incur substantial legal costs and in all probability the attempt would fail unless the circumstances were wholly exceptional. It is important to understand this. In practical terms it means that one party to a marriage cannot prevent the other spouse obtaining a divorce and there is little that can be done about it. This has the following important knock on effect.

When a marriage is dissolved by a Court the Court has almost unlimited powers to divide up all the marital assets in whatever way it sees fit although the Courts in fact make such divisions according to well understood rules. That is, it is not an arbitrary process but, equally, it is not one which either party to the marriage can prevent. It has not traditionally been possible in the UK to enter into binding pre-nuptial agreements which determine what is to happen to the marital property in the event of divorce. The Courts have complete and almost absolute jurisdiction. What this means in practice is that one party to the marriage can force a divorce and have the Courts decide how the marital assets ought to be split up. Short of not getting married in the first place these consequences cannot be escaped for the overwhelming majority of husbands and wives.

To find out more about the divorce advice for men please continue.

Divorce advice for men (2)

2. RESOLVING THE FINANCIAL ISSUES

Divorce solicitors for men see recurring problems when it comes to settling the financial issues arising from the marriage. Once divorce proceedings have been commenced and, in particular, once decree nisi has been granted the Courts have power to make final orders for maintenance, pension sharing, transfer of property and/or capital etc. If husband and wife cannot reach agreement then a Court may be asked by one of the spouses to decide the issue. There are several important points to be aware of here. Perhaps the most important, and the one which causes greatest resentment and confusion, is the fact that in the overwhelming majority of cases the reasons for divorce are not relevant in coming to any decisions on the subsequent financial arrangements.

It does not matter who divorces whom for what – that almost always has no impact whatever on the decision making process when it comes to resolving financial issues. This can seem hard when one of the parties feels the other has been almost exclusively responsible for the breakdown of the marriage. It is a particularly common feeling in the case of adultery, for example. There is a widespread feeling that the “guilty” party ought in some way to “pay” for what they have done and it often comes as a complete shock to discover this is not the case at all. In deciding financial issues the Courts are not concerned at all about who was to blame and simply do not want to know about the conduct of either party during the marriage unless the circumstances are wholly exceptional.

This is not prejudice on the part of the Courts: the rules which they have to apply are laid out clearly in law laid down by Parliament and an enquiry into the respective degrees of fault of the parties does not feature in the list. The relevant criteria are set out in the Matrimonial Causes Act 1973. If you read those criteria they seem at first sight perfectly plain and reasonable. A lay client who takes the trouble to read the relevant section will see, for instance, that it reads in part,

“It shall be the duty of the court in deciding whether to exercise its powers…to have regard to all the circumstances of the case…and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down..”

Most people are likely to seize on those words “all the circumstances of the case” and “having regard to their conduct” as meaning that their spouse’s bad behaviour can and should be taken into account but it does not quite work out like that. Husbands (and it is usually the husband) who are inclined to think like that soon discover that the words” so far as it is practicable” have a much greater weight than they could possibly expect. It is probably easiest to explain by example.

Say there is a husband and wife who live in a modest home together with two young children. There is a mortgage on the home and some equity. There are no other capital assets. The husband has paid the mortgage instalments while the wife has remained at home to look after the children from the time they were born. At first glance the husband might expect the home to be sold and the proceeds divided equally between himself and his wife. That will almost never happen.

What happens in this case is that the Court will look at the “needs” of the parties and it will be found that the “need” of the wife and children to have a roof over their head will greatly outweigh the “need” of the husband to have some part of the capital which was tied up in the matrimonial home. Young children almost always remain with the mother and so the overwhelming likelihood is that a Court would order the matrimonial home to be transferred into the sole name of the wife. This is despite the fact that the husband may have made all the financial payments. The Courts regard the needs of the wife and children to be much more important in cases such as these.

The truth of the matter is that is very rarely practicable to put both the parties into the financial position they would have been in if the marriage had not come to an end. In the overwhelming majority of cases there is simply not enough money available to enable both the husband and the wife to buy themselves suitable alternative accommodation and so a choice has to be made as to who has the greatest “need”. It is almost invariably the case that the Courts put the needs of the wife and children before that of the husband. This can seem, and is, very hard to the man.

Theoretically the law is equal for husband and wife but in practice, because the residence of young children tends to be with the mother, financial settlements of capital or transfers of property to the wife are almost always very substantial unless the marriage has been very short or there are other truly exceptional circumstances. This is the hard fact of the matter and it is difficult enough for most husbands in this position to accept but there are additional factors which are likely to add to the husband’s sense of grievance.

Please continue to find out more about divorce advice for men.

Divorce advice for men (3)

If the financial part of a divorce is contested it tends to be the most expensive part of a divorce. This need not be so. If a husband and wife do say they have reached agreement about financial matters (as very many divorcing couples do) a solicitor is likely to reply that he/she cannot give full and considered advice without having all the relevant financial information. That is quite a proper position to take although the client should always remember that he/she is the client and that it is open to him or her to say, “I don’t much care about that. I know what the financial position is. Please draft a document which reflects our agreement and submit it to the court so that everything can be finalised.” A solicitor faced with such a client would almost certainly seek to protect him/herself against a future negligence claim by insisting such instructions were in writing but with that proviso there is no reason why such instructions should not be carried out after suitable explanations and disclaimers.

However, such clients are very rare. What is much more likely to happen is that the client will be guided by the solicitor as to what the best course of action is.

In point of fact most husbands do not have bank accounts in Switzerland or the Cayman Islands but the scope for requesting information is much wider than one might imagine. The following gives a flavour of some of the documents or details which might routinely be requested in even quite ordinary cases:-

Bank statements for each and every account covering the last twelve months;
Statements for a similar period for any building society, post office or other account which contains any funds over which the husband has any control whether as beneficial owner or otherwise;
Copies of all credit card statements for the same period;
Copies of pay slips and any other sources of income for the same period;
Details of any expenses necessary earn the above income;
Copy of most recent P60;
Details of any necessary expenditure on providing yourself with a place to live – community charge, water rates, mortgage interest and re-payments, premiums on endowment insurance etc;
Ownership of any car – make, model, year of manufacture, estimated value;
Any property in which you have an interest, including jointly held property, and articles of any substantial value such as jewellery or furniture etc;
Any unpaid debts including hire purchase debts;
Any endowment insurance policies giving details of any premium, date of maturity, surrender value etc;
Details of any pension scheme including details of what the spouse would be entitled to on death, the transfer value, what would be lost on decree absolute etc.

It will readily be seen that it might take some time to get all this information and all sorts of further questions could be asked about any particular parts of it or about details which were incomplete. And this assumes that the recipient is co-operative about the whole process. In reality it is not uncommon for people to resent such intrusion and to be less than fully co- operative which obviously lengthens the whole process still further. And, of course, some of these details require applications to be made to third parties such as insurance companies or pension trustees who have no especial incentive to answer by return of post.

All of this takes up time and runs up costs but what is even worse is if the correspondence becomes acrimonious. It is especially easy for this to happen in divorce cases. An overly blunt letter asking, say, for details of a co-habitee’s income can result in point blank refusal which in turn can soon lead to court applications, “unless orders” and/or contempt proceedings. It is all too easy for emotions to take over and in those circumstances no- one benefits but the lawyers. The choice of lawyer is crucially important in this area because poor advice can easily make a bad situation many times worse.

To find out more about other factors such as access to and custody of children in divorce please continue.

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