The Handbook of Separation and Divorce

Wendy Mantle

• Publisher: Routledge
• Year: 2002
• ISBN:
  9781134843749
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

There are few people whose lives are unaffected by marriage breakdown. Yet how many are well informed about the divorce process and/or appreciate the wide powers the court has to redistribute property and income after divorce? Those who act without the benefit of specialist legal advice can risk impoverishing themselves and their families by accepting less than the court may award them or offering more than the court would order them to give.
The Handbook of Separation and Divorce is principally concerned with the financial consequences of marriage breakdown in England and Wales. It suggests what should be done when a marriage is in difficulty and ensures that advice is obtained from a solicitor who is a specialist. It recognises that everyone who separates or divorces will be the poorer and recommends that where appropriate those who can face mediation should undertake it while at the same time ensuring they can get independent legal advice.
The Handbook of Separation and Divorce will be essential reading for social workers and health professionals as well as the general reader and those going through, or considering, divorce or separation.

Chapter 1

Is your divorce really necessary?

Marriage is a contract which imposes on both parties the obligation to support each other financially. In this it differs from cohabitation. But the extent of the obligation is tested only when the marriage breaks down, a divorce is obtained and the parties apply to the court for financial relief.

In order to obtain a divorce, the husband or wife who petitions has to assert that the marriage has irretrievably broken down, and has further to add the evidence that he or she relies upon. The evidence falls into one of five categories. For an immediate divorce evidence on one of two bases can be used. The petitioner can add to the statement that the marriage has irretrievably broken down an allegation of adultery and assert the intolerability of life with the husband or wife. Alternatively, the petitioner can allege unreasonable behaviour, which has to be behaviour which is so intolerable that the petitioner could not be expected to put up with it. In neither case can a petitioner cite the adultery or unreasonable behaviour as evidence of breakdown if he or she has continued living with the respondent for more than six months after learning of the adultery or suffering the unreasonable behaviour.

If neither of these bases is used, couples have to wait until they have been separated for two years from the date of their separation. The fact of separation is evidence of the breakdown provided that the respondent to the petition agrees that a decree shall be pronounced. It is possible, during a period of separation, for a couple to spend time together but that time has to be added to the two-year period and cannot exceed six months.

The same provision applies to the fourth basis for divorce, which is a period of separation for not less than five years. In this case, no consent is required from the other party. In both cases where divorce is based on the evidence of breakdown provided by separation, the respondent can make an application to the court to stop a decree nisi (which is a conditional decree) being made absolute until the financial circumstances of the respondent have been considered by the court. This application is often necessary to protect wives who have always been dependent and who will lose, on divorce, the chance of acquiring a widow’s pension in the future (see Chapters 7 and 12).

The fifth, little used, fact as evidence of breakdown is desertion. This means the leaving of one spouse by another for more than two years without reasonable cause. It can mean that the petitioner has either been expelled from the matrimonial home by the conduct of the other or that he or she has been left in the matrimonial home. The bases for divorce are set out in Section 2 of the Matrimonial Causes Act 1973. This Act is the principal piece of legislation providing for divorce (Chapter 6 explains the procedural steps which have to be followed).

The new Family Law Bill will introduce radical changes in the system from 1998, with an 18-month period for reflection between a statement of marital breakdown and an application for a divorce or separation order as the only basis for divorce. In view of the limitations it is expected to introduce (see Introduction) there may be an increase in divorce before the new law takes effect.

The distinction between an unhappy marriage and one which has irretrievably broken down can only be made by those who have already divorced. Ironically, the fact of divorce is not proof that the marriage did irretrievably break down. It is not unknown for unhappily married couples to divorce because their unhappiness is unresolved although the marriage relationship may not have broken down. Conversely, many husbands and wives stay together for financial convenience or because they consider it to be in the best interests of the children even though their emotional relationship has ceased to be of any significance.

Every married individual, or couple if they are able to discuss their problems together, has to consider whether a relationship has ended. In recent years the relevance of their financial condition has usually been at the forefront of their problems. It is essential they should consider whether difficult financial circumstances exacerbate other problems. If there is no prospect of the financial situation being improved they have to consider how divorce will resolve it.

For instance, if a warring couple are in arrears with mortgage payments on their home, a voluntary sale is more likely to produce a better offer than a forced sale by the building society, but it is unlikely that two homes can be purchased with the proceeds. Perhaps debt counselling in this situation should precede marriage counselling.

Matrimonial counselling should enable a couple to decide whether they can bear to live together in an attempt to recreate their relationship. Often there is no question of joint consultation: if one partner has decided to leave, and is convinced that the marriage is at an end, he or she will not necessarily accept the need for counselling. The partner who remains will be in urgent need of counselling in order to learn to accept the situation or to learn how to persist in trying to save the marriage. He or she may however be forced into proceedings to prevent the other from taking unwise financial decisions such as emptying a bank account.

Legal advice should be obtained at an early stage before any final decisions are taken. Divorce is, after all, a legal process. No responsible solicitor or other adviser will recommend that divorce be undertaken lightly because its consequences, unless they can be agreed, may be unforeseeable. Too frequently, couples separate and make separate arrangements without finding out whether the agreed solution is feasible. Of course if a marriage between financially independent partners ends in circumstances where there are no dependent children it may be that that neither wishes to incur the costs of legal advice; and the only significant asset may be a home which is to be sold and its proceeds equally divided. Many eventualities can be anticipated which should be considered and prepared for in advance. It would be unfortunate if, having divorced on an agreed basis, the husband or wife were later to lose work or earning capacity and find that there was no possibility of claiming maintenance from the other. Equally, if a claim for maintenance was made in a petition and was not dismissed later by an agreed order, the later inheritance of money by the other party could result in a financial claim being pursued.

There are limits to what divorce and financial proceedings can achieve. One purpose of early legal advice is to obtain information as to the likely range of settlement which, in each case, it may be possible to expect. If a client is prepared to discuss matters with his or her spouse in an attempt to resolve matters it may be useful to refer the couple to mediation. Mediation is a process designed to help couples resolve their disputes in relation to children and money. There are many different models, some involving one mediator and others two. It can take place before or during the divorce and financial proceedings. It may result in no agreement at all or agreement on some or all issues. Each party should always obtain independent legal advice on the proposed terms of settlement.

Experienced solicitors will provide details of guidelines used by the court in settlement of financial claims, and in cases involving children will be familiar with the different kinds of arrangement which can be made. They should also be able to provide, if given sufficient financial information, details of the likely child maintenance assessment which the Child Support Agency will award in respect of the children. This situation can be very complex where shared arrangements for children are proposed and will often complicate the budget planning of both parties.

It will be reasonable for divorcing couples to expect the same level of information from mediators if the proposed legislation becomes law. But those expectations may be unrealistic unless the new mediators have the same responsibility to their clients as solicitors have, and it follows that they would then be expected to have the same kind of indemnity insurance arrangements which solicitors are compelled to have.

One or both parties to a marriage may be deterred from proceedings because of the uncertain outcome of the financial applications they may make or of their applications in relation to the children; they should always be aware of the time, energy and costs which will be consumed. Separation may be an easier alternative in the short or medium term; divorce after all is not compulsory. On the other hand if, having obtained all the necessary information and advice, it is essential for the well-being of the family and the individuals to proceed, negotiations to lead to a divorce should begin.

Chapter 2

First steps

THE IMPORTANCE OF UNDERSTANDING THE LAW

The prerequisite to action is familiarity with the law and procedure. An outline is set out in Chapters 6 and 7 but information on the substantive legislation referred to at the end of those chapters can be obtained from good reference libraries.

Statutes concerned with matrimonial law, like court decisions on how they apply to different cases, are the centre of a web of legislation on other subjects—housing, insolvency, company law and property law—which, depending on the circumstances, can have a decisive effect on the outcome of matrimonial disputes.

Anyone thinking of permanent separation or divorce has to decide what he or she would like to achieve and establish whether it is possible to achieve those objectives. The fact that legal aid for divorce is now available for many fewer litigants does not mean that legal representation is unnecessary, or that it is safe for one party of a marriage to proceed without representation while the other may be able to pay for advice and representation. But whether someone is eligible for legal aid, or is not eligible and can pay privately (see Chapter 3), or prefers to act for him/herself perhaps with advice from a solicitor from time to time, knowledge of the law is an essential tool.

THE OBLIGATION TO TRY AND SETTLE DISPUTES

Since 1990 solicitors have been obliged to seek a settlement of all issues in dispute between divorcing couples. There are detailed rules providing for the procedure in divorce and related applications, and the Family Division of the High Court provides practice directions which clarify or state how particular matters should be dealt with.

The occasion for issuing the practice direction in Appendix 2 was a case in which the costs consumed by litigation were wholly disproportionate to the assets involved. The direction concludes with these words ‘While it is necessary for the legal advisers to have sufficient knowledge of the financial situations of both parties before advising their client on a proposed settlement the necessity to make further enquiries must always be balanced by a consideration of what they are realistically likely to achieve, and the increased costs which are likely to be incurred by making them.’

For many years solicitors specialising in family law had, when appropriate, pursued the goal of settlement if it was necessary to begin financial proceedings in the courts. The Solicitors Family Law Association, founded in 1982, has a code of practice which requires its members to conduct cases in a manner conducive to settlement. This does not mean that in a case where there is violence or where the assets are removed from the country the family specialist does nothing. It is the solicitor’s duty to protect the interests of the client in the best way possible. This will often involve a willingness to take assertive action and in an emergency to take action without warning.

Where a case is not settled the courts have very wide powers, which can be exercised when the divorce decree is made absolute. Evidence in the form of sworn documents and disclosure of financial information by each party has to be completed before the court hears the case. In too many instances financial information disclosed by one party, which provides the basis on which court orders are made, is incomplete or inaccurate. The court’s powers are exercised on a discretionary basis but within the guidelines discussed in Chapter 7. Its concerns are that each party should have a roof over his/her head and that where possible the children should have continuity of home and school and, if it can be afforded, it may order a clean break which can end the right of either spouse to claim capital or maintenance against the other in the future or against the estate of the other when one of them dies.

A list of the county courts which have jurisdiction to pronounce decrees of divorce and deal with family matters is found in Appendix 3. In London the Principal Registry of the High Court also has jurisdiction to deal with family matters.

The maintenance of most children is dealt with by the Child Support Agency, to which applications for maintenance must be made in all cases where there is no agreement, and no existing court order, and where a child is under 19 or over that age and in full-time but not university education providing he or she has not been married. The Child Support Act does not apply to stepchildren or in cases where one of the parents of the child is habitually resident abroad. In all cases where the Child Support Act does not have jurisdiction the court will continue to deal with child maintenance. However, it is probable that even if written agreement between the parents provides for the maintenance of the child, if a parent wishes to obtain an assessment from the Agency he or she cannot be prevented from doing so.

CHOICE OF SOLICITOR

The satisfactory solicitor is one who will settle a case if appropriate, and adopt and pursue an assertive position where necessary. In the course of proceedings both a conciliatory and an aggressive stance may be necessary at different stages. The choice of representative is more acutely personal than in an action concerning other kinds of dispute. A solicitor who suits one client may be inappropriate for another for reasons which are wholly unconnected with ability and experience. Clients applying for capital and maintenance vary from those at one end of the spectrum who insist on accepting whatever is offered, however short of their needs it may be, to those who will not accept what they are advised is reasonable but prefer to risk not only money but the uncertainty of a contest before a judge to see whether they may get a better result by fighting instead of negotiating.

Clients who have to respond to claims for capital and maintenance vary similarly; there are those who are prepared to impoverish themselves by offering far more than the court would be likely to order, to achieve an immediate settlement; and there are those who will offer far less than the court might award in the hope that their spouses will not bother to contest it.

Solicitors have a duty to try and establish as economically as possible what the overall financial position is: that is, what are the assets, income, debts and liabilities of each of the parties. If a client does not wish a solicitor to press for disclosure of all the relevant financial information it is only right that the solicitor should advise and warn against settling on terms which the client may later regret. Conversely if the client refuses to agree to negotiate as an alternative to litigation the solicitor has a duty to warn the client against the danger of wasted costs. The financial pitfalls of a gamble are set out in detail in Chapter 3. The most costly battles are not necessarily those where there is most financially to lose, but those where one party is determined to fight to the end whatever the net assets may be. The response to this approach may be civilised resistance but this is difficult to sustain in the face of an onslaught of correspondence and applications.

It is also difficult to proceed if the party refuses to recognise proceedings by failing to acknowledge documents, making it necessary for every application to be personally served by an enquiry agent. This procedure greatly increases the costs, which if the case is pursued may be ordered to be paid by the recalcitrant party.

In the maelstrom of doubt and disturbance which most couples suffer when they or one of them decide that their marriage has broken down the decision to divorce is not automatic. Despite the nostrums in the popular press, practitioners are aware that many couples may not divorce when the marriage has in fact ended but may continue to live together for one or more reasons, of which young children and financial security are but two. Sometimes marriages die quietly. It is not unusual for a husband and wife to seek legal advice as to the consequences of divorce and then to draw back and wait for circumstances to change before making a final decision.

It is vital that people whose marriage...

Table of contents

• Cover page
• Title page
• Copyright page
• The handbook of separation and divorce
• Preface
• Acknowledgements
• Legal abbreviations
• Introduction
• Chapter 1: Is your divorce really necessary?
• Chapter 2: First steps
• Chapter 3: Paying for legal advice and representation
• Chapter 4: Separation
• Chapter 5: Emergency remedies
• Chapter 6: The divorce process
• Chapter 7: Financial applications
• Chapter 8: Insolvency
• Chapter 9: Housing and property
• Chapter 10: Benefits for divorced and separated people
• Chapter 11: Maintenance of children
• Chapter 12: Pensions and insurance
• Chapter 13: Foreign element
• Chapter 14: Mediation
• Chapter 15: The mechanics of settlement
• Chapter 16: Death and taxes
• Chapter 17: Enforcement of court orders
• Appendix 1: Notice of severance of joint tenancy
• Appendix 2: Evans and evans (practice note) family division (26 january 1990)
• Appendix 3: List of divorce courts in england and wales
• Appendix 4: Pensions and divorce
• Appendix 5: A fictional case study of a divorce followed by the progress of an application for financial relief culminating in an agreed order
• References
• Organisations helplines