Divorce law is a complex area. Lots of people think that divorce will be straightforward and that they don’t need a solicitor. They often stumble across legal problems that they did not foresee which a solicitor would be well aware of and would have avoided.
10 things that you probably don’t know about divorce are:
1. You can’t get divorced during the first year of your marriage.
It is not possible to start divorce proceedings until you have been married for at least 12 months. This can be a problem where the marriage breaks down very quickly and an application has to be made to the court for a financial order to sort out an urgent financial dispute, for example to sell a house or to freeze assets. An application for a financial order can only be made if there are divorce proceedings underway; such applications used to be called ancillary relief, as they were ancillary to a divorce. Free-standing applications are not possible. Therefore if the parties have not been married for a year, there have to be judicial separation proceedings started so that an application for a financial order can be made. Then, when the marriage is a year old, the divorce proceedings can start.
2. Adultery can still take place after separation.
It’s still adultery if the husband and the wife are still married; the fact that they are separated does not means that it does not count. It can be grounds for divorce, which some people understandably feel is unfair as they don’t feel that they have been unfaithful. I have blogged at length about the stupidity of our old-fashioned fault-based divorce laws.
3. If you remarry without applying to the court for a financial order, you may not be able to seek a fair share of the assets.
Remarrying without first issuing an application for a financial order may mean that you have fallen into the remarriage trap and cannot seek a fair share of the matrimonial assets. This will very probably depend upon whether you are the Respondent in the divorce or if you are the Petitioner, and whether or not you have filled in the divorce petition correctly. Always check with a solicitor before you remarry, especially if the court has not made a financial order as part of the divorce; if you handled your own divorce and neither of you used a solicitor, odds are that no order was made.
4. Irreconcilable differences is not grounds for divorce.
Not in this country at least. This is, I believe, grounds for the divorce in some parts of the USA. In England and Wales, the ground for the divorce is that the arrange has irretrievably broken down, which has to be demonstrated by pleading at least one of the following “facts”; adultery, unreasonable behaviour, desertion, 2 years’ separation with the spouse’s consent or 5 years’ separation without the spouse’s consent.
5. Gay sex does not count as adultery.
That’s not say to that it would not be grounds for divorce though. It would count as unreasonable behaviour. It’s not just gay sex either. Straight sex that does not go far enough is also not adultery. Adultery has to involve (I apologise for this in advance) a penis entering a vagina. Therefore a lot of things that would amount to infidelity do not amount to adultery. The divorce would instead have to take place on the basis of unreasonable behaviour. Read my blog about this here.
Adultery is also not grounds of dissolving a civil partnership (which is in effect a kind of divorce), although bizarrely it is grounds to divorce in a gay marriage case (again it has to be man and woman, so gay sex with someone else is not grounds for an adultery gay divorce). Quite why there should be this distinction is beyond me and yet another reason why there should be no-fault divorce in this country.
6. The grounds for divorce make no difference to the financial outcome of the divorce.
The court will only take into account people’s conduct if it would be inequitable to disregard it. In practice this usually means that the conduct must have had some kind of damaging effect on the family finances; for example, where a spouse has squandered the assets or where a spouse has abused the other spouse so badly that he or she cannot work.
In most cases, conduct makes no difference whatsoever to the financial outcome. Just because the divorce is on the basis of unreasonable behaviour or adultery does not mean that the Respondent gets less. The court knows that the grounds for divorce may not necessarily be the reason for the marital breakdown and it will rarely get bogged down in apportioning blame.
7. There’s no such thing as a quickie divorce.
Divorces all take potentially the same amount of time. Quickie divorces are an American concept, referring to when people would travel to Mexico or Nevada to get a quick divorce.
8. There is no such things as custody of children.
The concept of custody of children was abolished by the Children Act 1989 and was replaced by parental responsibility and residence. Both parents usually share parental responsibility (although some unmarried fathers don’t have it). Residence was usually with one parent or the other, although it was also possible to share it.
9. There’s no such thing as access to children, either.
The Children Act replaced the old concept of access with one called “contact”. The media have pretty much failed to take any note of this and still talk about access and custody. Some slightly better informed journalists will talk about “residency” when they mean Residence.
No self-respecting family solicitor or barrister would ever use the expression custody or access and if I ever meet one who talks about “residency” I would assume that he was dabbling and had no idea what he was doing. Many years ago I acted in a case where the other solicitor had applied for a “residency” order. A hearing took place where the other solicitor was not present, but had sent a barrister to represent his client. The judge noted the poor terminology and, having already decided that the application was utterly misconceived, remarked about the solicitor “There’s a whiff about them”.
Residence and contact have now been replaced by Child Arrangements, which are supposed to phrased in terms of time spent with each parent. The words residence and contact are not supposed to be used anymore, but they still creep into Child Arrangements Orders when the lawyers are a bit stuck in their ways.
10. Divorce does not mean that you have to appear in court.
In fact very few divorcing couples ever enter the precincts of the court. Divorce is largely a paper exercise. If people are can’t agree financial issues or arrangements for their children, they may have to litigate through the court and will then have to attend court hearings, but most people don’t. The majority of divorcing couples reach an agreement, usually with assistance and representation by their solicitors. Non-court dispute resolution methods such as mediation and collaborative process are increasingly common and are designed to avoid the need to go to court.
30th November 2015