- Adultery doesn’t mean you will get a bigger settlement
People often assume there will be a financial impact if one partner has had an affair, or left the marriage. In fact, this will rarely make any difference to the overall division of assets. When it comes to money, by and large the court is not interested in why the marriage is ending, but rather what resources you each have available and how they are to be divided fairly.
- Adultery is only grounds for divorce where it is committed with a member of the opposite sex
In English law, the court can only grant a divorce on the grounds of adultery if it is committed by your spouse with a member of the opposite sex. This means that if your wife leaves you for another woman, you will not be able to use the fact of her adultery on its own to persuade the court to give you a divorce.
- There is no such thing as a ‘quickie’ divorce
The press often reports on celebrities being granted a “quickie” divorce but there is, in fact, no such thing. What is being referred to is the pronouncement of a decree nisi in open court, which gives entitlement to the petitioning party to a divorce. The final divorce certificate — the decree absolute — can only be granted six weeks later. In reality, a divorce takes at least four to six months to conclude and it can be longer if the parties need to reach a financial settlement. “A “quickie” divorce is a phrase used in the media, but means nothing in the law.
- It is possible to have a ‘no fault’ divorce?
Provided the parties have been separated for two years (and the responding party consents to the divorce) or if they have been separated for five years, it is possible to apply for a “no fault” divorce.
Under current English law, if one partner objects, courts are not permitted to grant a divorce unless the couple has lived apart for five years.
- Getting divorced in England can benefit the financially weaker party England has a reputation around the world for awarding generous payouts to the financially weaker party in a divorce. Generally speaking, financial awards made in other jurisdictions in Europe and elsewhere in the world are much more limited. This is because judges in England have extremely wide discretion when deciding how assets should be divided upon divorce.
The starting point when it comes to division of assets is 50/50 and the court is able to apply an element of discretion as to the award. The court will not discriminate between the homemaker and breadwinner, which is why the English courts are considered to be a particularly fair jurisdiction.
Even if you did not marry in the UK and neither of you is a UK national, you could still get a divorce there. If both you and/or your spouse are habitually resident in England or Wales, either of you could be entitled to issue divorce proceedings in those countries, regardless of where you married or what your respective nationalities are.
- If an overseas divorce has left you high and dry, can I try again in England?
If you have obtained a divorce in another country and it has left you with inadequate financial provision, you could be entitled to make an application for financial remedies in England and Wales. To get another bite of the cherry you will need to meet all of the relevant legal criteria. This includes that the foreign divorce is recognised as valid, that you have not remarried and that you can demonstrate a sufficient connection with this country.
- You might not get a ‘meal ticket for life’
It is a common belief that where there has a been a lengthy marriage where the wife stayed at home to raise the children, the courts will agree to maintenance payments for life. However, this is changing: English courts are increasingly placing time limits on post-divorce maintenance, assuming that the financially weaker spouse will eventually go out to work.
- Full disclosure means full disclosure!
If you end up in dispute with your soon-to-be ex over your finances and one of you applies to the court to determine the issue, each of you will be put under an obligation to give full disclosure of all of your financial and other relevant circumstances. Any changes to your financial position that occur in that time — even if the bulk of your disclosure has already been provided — must also be shared with your spouse. The court takes the duty of disclosure extremely seriously. Where there is evidence to suggest that a party has deliberately or recklessly withheld information, at the very least the court may draw adverse inferences against them. In a more extreme case, that party could find themselves with a previous order being set aside or even criminal proceedings being brought against them.
- You cannot always separate assets you had before you were married
If there is a surplus of assets over and above your needs as a separated family, then such “non-matrimonial” assets will be excluded. However, most couples who divorce do not have assets in excess of their needs. In such cases, the court will need to have recourse to all the assets to meet the needs of the couple and their children following separation, whether these are inherited, pre-marital or not.
- There is no exact formula for working out how assets are divided.
The courts offer some principles and guidelines to give a rough idea of the likely settlement size in any particular case, taking into account the couple’s financial circumstances. However, current English law is far more discretionary and is based on what each party needs to live on and the principle of sharing assets. This means every case is different. The courts have discretion as to how to divide up assets, income and debts between a couple following a marriage. To achieve a fair result, all the competing factors and circumstances must be taken into account.