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How to Know If It’s the Right Time for a Divorce
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How to Know If It’s the Right Time for a Divorce

Published on
Chris Sweetman
Chris Sweetman
Editor at The Divorce Magazine
Director at Fair Result

Deciding to end a marriage is one of life’s most challenging decisions. While there’s no universal “right time” for divorce – certain signs may indicate it’s time to consider this option. In this article we will explore key indicators and important considerations when contemplating divorce.

Signs Your Marriage May Be in Trouble

Persistent unhappiness is often the first sign that a marriage is in trouble. If you’ve been consistently unhappy for an extended period, despite efforts to improve the relationship – it may be time to reassess your marriage.

This feeling often goes hand-in-hand with a breakdown in communication. When attempts at meaningful dialogue consistently fail or lead to arguments – it can signal a fundamental issue in the relationship.

Infidelity is another major factor that can lead to divorce. Repeated unfaithfulness or an inability to rebuild trust after infidelity can be deal-breakers for many couples. Even more serious is the presence of abuse in a relationship. Physical, emotional, or verbal abuse, like financial control, should never be tolerated and is a clear sign to seek help and consider leaving.

Sometimes, couples find themselves growing apart due to diverging values or goals. If you and your spouse have fundamentally different life aspirations or core values that can’t be reconciled, it may lead to irreconcilable differences.

Red Flags That Shouldn’t Be Ignored

A complete loss of intimacy, both physical and emotional – can indicate a deep disconnect between partners. This lack of closeness often signals that the relationship has moved from a romantic partnership to a mere cohabitation arrangement.

Addiction issues can also strain a relationship beyond repair. Untreated substance abuse or other addictive behaviours not only affect the individual but can have devastating effects on the entire family unit.

Financial problems, particularly financial infidelity or constant money stress – can erode trust and stability in a marriage. Persistent financial dishonesty or unresolvable conflicts over money management often lead couples to consider divorce.

Some couples stay together solely for the sake of their children. While considering children’s well-being is crucial – remaining in a dysfunctional marriage may not be in their best interest long-term. Children are perceptive and can often sense tension and unhappiness between their parents.

If you’ve exhausted all options – tried counselling, communication strategies, and other interventions without success – it might be time to consider separation or divorce.

Important Considerations Before Deciding

Before making a final decision about divorce, it’s crucial to seek professional help. Engage in marriage counselling to explore all possibilities for reconciliation. A trained therapist can provide valuable insights and tools to help you navigate your relationship challenges.

Consider a trial separation. A period of living apart can provide perspective and clarity on the relationship. It allows both partners to experience life without the other and can sometimes rekindle appreciation for the marriage or confirm that separation is the right choice.

Consulting a divorce solicitor is also an important step. Understanding the legal implications and potential outcomes of a divorce can help you make a more informed decision. A solicitor can explain your rights, potential financial impacts, and issues related to child custody if applicable.

Lastly, take time for self-reflection. Consider your own needs, well-being, and future goals. Think about what you want your life to look like in the coming years and whether your current relationship aligns with those aspirations.

Final Thoughts

The decision to divorce is deeply personal and should never be made hastily. If you’re consistently feeling that your marriage is beyond repair and is causing more harm than good – it may be time to seriously consider your options.

Remember, seeking professional guidance can help you navigate this difficult decision and its aftermath.

Whatever you decide, prioritise your well-being and that of any children involved. There’s no shame in ending a relationship that no longer serves you – just as there’s value in fighting for a marriage that still has the potential for happiness and growth.

Read more articles by Chris Sweetman.

About Chris Sweetman

Chris Sweetman is an independent family solicitor and director of Fair Result – An award-winning law office who pride themselves on using innovative ways to help clients through the stress and complications of a marriage breakdown.

Chris can be contacted on 07500933818 or via email chris@fair-result.co.uk.

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Navigating Divorce with Grace: Insights into Collaborative Law

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Embarking on the journey of divorce or separation can be daunting, but there are alternative methods to traditional litigation that prioritise cooperation and mutual agreement. In this exclusive Q&A session, we sit down with Charlotte Bradley, an esteemed expert from Kingsley Napley, to delve into the world of Collaborative Law.

Discover insights, tips, and invaluable advice on how Collaborative Law can pave the way for amicable resolutions and a smoother transition during challenging times.

What is collaborative law/practice?

Collaborative family law (or practice) is a way in which a separating couple can, on a consensual basis, resolve issues without court proceedings.  You, your former partner/spouse and your respective lawyers all work together to resolve the various matters arising from separation, including the financial issues and the arrangements for any children.

How does it work?

Each client appoints a collaborative lawyer and the couple and their lawyers then consider the issues which should be addressed, and also which professionals to involve, for example a child specialist to consider the child arrangements, counsellors to support the parties and a financial professional to help with future financial planning. The lawyers and clients sign an agreement in which they all agree not to go to court and instead there is a series of meetings in which a transparent and open dialogue is encouraged. While each lawyer is representing their respective client, the professionals and the couple strive to work together as a team, with the joint aim of avoiding court proceedings. If either party decides they must go to court to obtain a final decision, then each of the couple need to instruct new lawyers.

How does it differ from other ADR options (such as mediation)?

Mediation uses a similar model of face to face meetings, but a mediator is not representing either of the couple. Although they can provide lots of information about options (the court process etc), the mediator is unable to advise on the likely outcome of any proposed settlement. For most family mediation, lawyers tend not to be in attendance (although increasingly, hybrid mediation where the lawyers are in attendance is becoming more common). Some individuals prefer the support of having a lawyer with them in meetings to help discuss and negotiate the various issues as happens in collaborative law.

What are the advantages?

Each client has the support of their trained collaborative lawyer who contracts with the couple to act in a constructive way and are encouraged to put all the family’s (including any children’s interests) at the forefront. For clients who feel insecure about attending mediation without their lawyer next to them (for example if there is a significant disparity in financial knowledge or bargaining power), collaborative law can be a good option as they can seek advice and support throughout albeit the advice that their lawyer gives is more transparent and negotiations should be less polarised than in the traditional court model. The possibility of counselling input and expert assistance around the children’s needs is actively encouraged. The flexibility of the process also enables other professionals to be brought in when needed, for example it is not unusual to bring in a financial planner and other professionals to help consider the future finances for the family including cash flow modelling, options around pensions etc.

What are the downsides?

Collaborative law is not suitable for everyone, and best serves couples who show a commitment to finding a solution to the various issues themselves but with legal support and advice. It is also only suitable for those who expect to give full and frank disclosure about their respective financial positions and other circumstances. Sometimes, if one of the couple wishes to delay the divorce (for example they intentionally postpone meetings etc), the collaborative process can be slow and costs can increase so careful managing of the process is required (and the lawyers and the couple need to be confident that the process is right for them before signing up). The collaborative agreement, requiring couples to change lawyers if the process breaks down and they want to go to court, can sometimes concern potential clients but that disqualification clause is important to encourage the couple and their lawyers to have the right solution focused mindset, to enable non-polarised negotiation and to resolve the issues.

Do you still have to go to court at the end?

No one needs to attend court and if agreement is reached, the collaborative lawyers can transfer the financial agreement into a draft consent order which is lodged at court (with financial summaries) for the judge to approve. It is also common in collaborative law (as it is in mediation) for the couple to prepare and sign a parenting plan setting out the arrangements for the children (although that is not routinely lodged at court).

How long does it take and how much does it cost?

Both answers depend on the issues to be resolved and how engaged the couple (and their lawyers) are to reaching a resolution. If they are committed to the process, and regular ‘four way’ meetings are diarised without delay in between, then collaborative law can be very quick as there is no court timetable applying. Or sometimes one or both of the couple can take time to come to terms with the breakdown of the marriage and resolve the various issues and need more time between four way meetings to reflect and to take advice from their collaborative lawyer. As to costs, they can vary depending on the amount of meetings and how complicated the issues are as the costs will depend on the amount of time the two lawyers spend on the collaborative case (typically based on their hourly rates). It can often be cheaper if the couple bring other professionals to assist on key areas (eg on the child arrangements or for cash flow modelling).

What else can it be used for (eg pre-nups)?

Collaborative law is very flexible and can be used in all areas of potential family dispute. It is particularly effective when couples are discussing the terms of a prenuptial or cohabitation agreement – so that each of them are having clear and transparent discussions with shared professional advice about their future plans and intentions, critical in my experience as different approaches on money and children can cause problems in a marriage or long- term relationship.

Is it a US import? What has changed in the last 20 years in the way it is used here?

So I did the first training in Europe just over 20 years ago (collaborative law having first started in the US and Canada), and with others, helped establish collaborative practice in the UK. What has changed is that we are more aware of the need to bring in non- legal professionals into the collaborative process (eg child specialists and counsellors) to really focus on the solutions for families on separation, with the law being only one small part.

How does it fit with clogged family courts, no-fault divorce, and other modern family law /societal trends?

Collaborative law is one of the now established methods of non-court resolution and, along with other non-court processes (like mediation) is actively encouraged by the government and the judiciary. Following the introduction of no-fault divorce two years ago to help reduce conflict between divorcing couples, there is strong encouragement for couples to resolve their differences without attending court, to reduce cost, the pressure on the court system and also to help avoid the effects of conflict on children which can be caused by long legal battles. And as new court rules come into law on 29 April 2024 to ensure that all couples consider non-court options such as mediation and collaborative law, collaborative practice is likely to be something that becomes of more interest to separating couples in the years to come.

Read more articles by Kingsley Napley.

About Charlotte Bradley

Charlotte Bradley is a Consultant and former head of the Family team at Kingsley Napley LLP. She advises on all aspects of family law, particularly issues to do with finances and children. She is author of the respected legal textbook on Schedule 1 cases. She is also an accredited mediator and collaborative lawyer, often working with high profile and high net worth couples keen to resolve their separation in private.

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How not to ‘hard launch’ your divorce
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How Not to ‘Hard Launch’ Your Divorce

Published on
Sarah Bunn
Sarah Bunn
Associate
Burgess Mee Family Law

In this digital age there is often a temptation to take to social media to record a landmark life event. Coupled with this, for many, there is also the desire to use social media to put the wrongs of the world to right – whether that is in relation to world politics or our personal lives.

In the context of divorce proceedings, from which financial and children proceedings can also follow, a solicitor’s headline advice is likely to be to avoid sharing information about one’s divorce on social media, or at least to err on the side of caution. We all remember Gwyneth Paltrow and Chris Martin’s ‘conscious uncoupling’ campaign. However, without a PR team behind you, any possible benefits seem to pale in comparison to the possible pitfalls.

Social media may appear to provide useful guidance and tips about navigating the divorce process but often this “advice” or anecdotal evidence is incorrect and could even be harmful. All families are different, and it follows that all divorce experience is different.

As a starting point, parties involved in family court proceedings are expected to uphold confidentiality. This means not sharing details about the case to third parties (unless in specific circumstances, such as when speaking to a legal representative or experts in a case). It also means that a party must not share documents relating to their case with third parties, including their entire social media network. In the context of divorce proceedings, which is largely an online process where spouses can usually avoid ever stepping into a court room, this can easily be forgotten. In financial and children proceedings, whilst attendance at court is more likely, reminders are often necessary.

Divorce, Confidentiality & Social Media

A breach of confidentiality in relation to family proceedings can have a negative impact on one’s case. Judges will be far from impressed and may say so, and in more extreme cases, the individual who is in breach of confidentiality can face fines and/or even a term of imprisonment.

It is important to be aware that even if one maintains confidentiality about the proceedings themselves, derogatory posts on social media about your spouse/child’s other parent can be used as evidence in a case. For example, social media posts about what a terrible person your (soon-to-be former) spouse/partner is or criticism of their parenting styles are often screenshotted and exhibited to narrative statements in order to evidence the conduct and entrenched views of one party about another.  More often than not, this will negatively impact a judge’s perception of the person posting such information, as opposed to the ‘postee’.

It is important to remember that judges are human and that they have a fairly wide discretion within the law. If they take against a particular party, this could impact the final decision which may be unappealable so keep them onside if you can.

Family, Social Media & Divorce

During family proceedings, it is often advisable to avoid social media altogether as what may be construed as positive posts can be used in a negative context, for example, during children proceedings where a party posts a photo of their new partner having a fun day out with children. If the other parent did not know that the children had been spending time with a new partner, such photos may be used as an example of a lack of positive co-parenting and joint decision-making.

Divorce, Finances & Social Media

In financial proceedings, constant updates about new relationships and time spent at each other’s home can be used as evidence of one of the parties’ cohabitation, or intention to cohabit with their new partner or even that claims of financial straits are untrue; “Just look at that 5-star hotel/business class flight/new handbag!”. This may impact financial provision made upon divorce. Even screenshots of CVs and comments found on a spouse’s professional profile can be used as evidence in relation to income and earning capacity.

As an aside, divorcing spouses should also be made aware, at the start of a case, about the move towards transparency in the family court. This development brings in a presumption that approved media and legal bloggers may attend most hearings in the family court and that they may report what they see, hear, and read, although usually the reporting will be anonymised first. This change in the ‘private’ nature of proceedings may result in an inevitable loss of control by parties to keep the details of their case private and shielded from mainstream media, even if they uphold their side of the confidentiality bargain.

Whilst media outlets will not construe every case as a matter of public interest, and there are limits to what can be reported, if you have concerns about this, it is important to have a discussion with your solicitor about whether the media may be interested in your case, and what steps you can take to keep details of your case private.

Some helpful guides about confidentiality in family court proceedings can be found on the government website:

Read more articles from Burgess Mee.

About Sarah Bunn

Sarah Bunn is an Associate at Burgess Mee. She specialises in complex financial remedy and private children law cases. She also advises clients in relation to nuptial agreements and cohabitation disputes.

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Analysis-of-the-latest-ONS-statistics
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Review of the latest ONS statistics

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Sital-Fontenelle
Sital Fontenelle
Head of the Family & Divorce
Kingsley Napley

The latest ONS statistics show that the number of people divorcing is at the lowest rate since 1971.

There has been a 29.5% decrease in divorces in 2022 compared with 2021. There were 78,759 opposite-sex divorces, which is a decrease of 29.6% from 2021. Same-sex divorces also decreased, to 1,298 in 2022 representing a decrease of 17.4% compared to 2021.

Interestingly the median duration of marriage at divorce was 12.9 years for opposite sex couples, a fractional increase compared with 12.3 years in 2021. For same-sex divorces in 2022, the median duration of marriage was 7.5 years for male same-sex couples and 6.3 years for female same-sex couples.

As the Government press release suggests, the declining divorce rate can perhaps partly be attributed to the Divorce, Dissolution and Separation Act, effective from April 2022 which introduced new mandatory waiting periods during the divorce process.

Undoubtedly, however, there are also societal trends going on. The cost-of-living crisis may have deterred some couples from divorcing, although based on our experience of the 2007 financial crisis, this will probably mean divorces are delayed rather than decided against altogether. Recorded divorces are happening later and after longer marriages, but at the same time cohabitation is on the rise for younger couples.

Despite today’s figures, the fact is divorce and separation still affect many couples and families. We continue to see this in our work although increasingly clients are willing to mediate or explore alternative forms of dispute resolution to agree terms both financially and for the sake of their children. The good news is that there are now a variety of ways to go about that depending on the circumstances and how couples wish to approach such a significant event.

More articles by Sital Fontenelle.

Sital Fontenelle

Sital Fontenelle is the Head of the Family & Divorce team at Kingsley Napley. She specialises in the complex financial aspects of a divorce, negotiating and drafting of nuptial agreements as well as private children law cases. She typically acts for high-net-worth individuals, often on cases involving an international dimension, offshore trusts, family businesses, inherited wealth or asset tracing. She is also highly experienced in complex children cases. Sital is an active member of the Resolution Cohabitation committee and regularly speaks at international conferences on wealth protection and trusts. She is a recognised leader in her field in legal directories, including the Chambers Ultra High Net Worth Guide, Legal 500 UK, Chambers UK (finance and children) and Spears. As well as being ‘Recommended’ in the Spear’s 2023 Family Law Index, she won silver in the Woman of the Year – Future Leaders (Partner) category at the Powerwomen Awards 2020. 

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Pre-Nuptial-Agreement-Enquiries
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Increase in Blended Families Leads to Rise in Pre-Nuptial Agreement Enquiries

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Kate Booth
Kate Booth
Solicitor, Head of Family & Matrimonial
Brindley, Twist, Tafft & James Solicitors (BTTJ)

More people planning their second, third or fourth wedding are entering into pre-nuptial agreements with their future spouse.

Step-families or blended families are the one of the fastest growing types of families in the UK making up about a third of all UK households.

Older people who might previously have had a bad experience and are looking to re-marry are among those most commonly seeking a pre-nup and over recent years the importance of pre-nups has grown.

Historically they were not binding, but now they will hold sway in court when it can be shown that the agreement is fair to both parties. Both need to have had ample opportunity to seek independent legal advice, the agreement needs to be signed by both parties well in advance of the marriage and both parties must have given full disclosure about their personal finances before the marriage takes place.

With these safeguards, the court is likely to recognise that the pre-nuptial agreement was entered into together and in that case, it can be binding.

Where it can get complicated is when circumstances change – for example if children come along. In cases such as these it is important to review and update any initial agreement, so it remains relevant to the present-day family situation.

More than just factoring in financial situations a pre-nup offers the opportunity to look at the whole picture, taking all assets into account, ranging from family businesses to pets.

There may be someone who has their own business or is a joint owner of a family business. In this instance pre-nups are a useful tool to avoid a former spouse from staking a claim.

For the full range of legal services available from Brindley Twist Tafft and James log on to www.bttj.com

About Kate

Kate deals with private family law cases including divorce and related financial matters, children, injunction and cohabitation issues. She also advises clients in connection with pre-nuptial and cohabitation agreements.

For the full range of legal services available from Brindley Twist Tafft and James log on to www.bttj.com

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Navigating your finances through divorce: A comprehensive guide
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Navigating Your Finances Through Divorce: A Comprehensive Guide

Published on
Andrew Robotham
Andrew Robotham
Divorce & Family Lawyer
Woolley & Co Solicitors

Going through a divorce is undoubtedly a challenging time, and it’s crucial to understand that completing the legal process is just one aspect. Sorting out finances is equally important but often overlooked. In this guide, we’ll address common reasons why people delay or avoid settling financial matters, emphasising the potential pitfalls, and offering guidance for a smoother financial transition.

Why do some delay a divorce settlement?

  1. Believing there is nothing to protect: Some couples think they have nothing valuable to protect, so hiring a solicitor seems unnecessary. However, even seemingly modest assets should be properly addressed to avoid future complications.
  2. Self-resolution confidence: Couples who are amicable and believe they can sort out financial arrangements by themselves may delay seeking professional advice. While this may work initially, unforeseen changes or disagreements can arise later.
  3. Cost concerns: The perception that hiring a solicitor is expensive leads some to avoid professional assistance. However, the long-term financial consequences of not settling matters properly can far outweigh the initial cost.
  4. Information agreements: Couples who have informally agreed on financial matters may skip the formal process. Unfortunately, without a legally binding agreement, these arrangements can be challenged in the future.
  5. Postponing due to stress: Some couples decide to delay financial discussions, thinking they can revisit them later. However, procrastination can lead to legal and financial complications down the road.

Importance of timely settlement

Future claims:

Without a consent order, an ex-partner may have legal claims on assets acquired post-divorce, such as lottery winnings or inheritances.

Changing circumstances:

Amicable relations can change due to new partners or altered circumstances. A delay might result in a partner changing their stance on previously agreed-upon terms.

Tax implications:

Delays may lead to unnecessary tax liabilities, especially regarding capital gains tax on property sales not considered the main residence.

Asset valuation:

Waiting to resolve assets can lead to disputes over their current value, potentially disadvantaging one party. It’s crucial to have up-to-date valuations during settlement discussions.

Financial advice and consent orders

Seek professional advice:

Consulting financial advisors and solicitors ensures you make informed decisions and protects your interests in the long run.

Consent orders:

Even if you’ve amicably agreed on terms, formalise the agreement with a court-issued consent order. This legally binding document prevents future disputes and ensures financial clarity.

Conclusion: Take control of your financial future

In conclusion, while the emotional aspects of divorce are undeniable, addressing financial matters promptly is crucial for a secure future. Regardless of the simplicity of your financial situation, seeking professional advice and obtaining a consent order will protect you from potential legal and financial pitfalls. Remember, the initial investment in settling matters now is far less than the potential cost – both financially and emotionally – of neglecting proper financial resolution. If you’ve decided on or are going through a divorce, ensure your financial affairs are in order for a smoother transition into the next chapter of your life.

Read more articles by Woolley & Co Solicitors.

About Andrew Robotham

Andy is an experienced divorce and family lawyer with Woolley & Co, Solicitors. He has built an enviable reputation in the Derbyshire and Leicestershire area. He deals with all areas of matrimonial law, including divorce, children matters, financial settlements as well as civil partnerships, separation, cohabitation, and prenuptial agreements.

In the 2020 edition of Legal 500 Andy is named as a Recommended Lawyer for Family Law in the East Midlands, where it is noted ‘Andrew Robotham’s qualities are numerous. He is able to combine empathy for the situation as well as total professionalism that the circumstances demand’.

You can visit Andy’s profile here for more.

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What if my Partner Refuses to Co-Operate in a Divorce? No-Fault Divorce FAQs.
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What if my Partner Refuses to Co-Operate in a Divorce? No-Fault Divorce FAQs

Published on
Jennifer Pollock.
Jennifer Pollock
Senior Associate Solicitor
Irwin Mitchell

Jennifer Pollock, Senior Associate in Family Law, from leading UK law firm Irwin Mitchell shares her thoughts on some of the most asked questions around no-fault-divorce since it came into effect on 6th April 2022.

What is a no-fault divorce?

Changes made to the law last year have revolutionised the process of divorce application. Prior to its introduction, you had to demonstrate that your marriage had irretrievably broken down by proving one of the following:

· The other person has committed adultery.

· The other person had behaved in such a way that you couldn’t reasonably be expected to live with them any more.

· You’ve been separated for two years and the other person agrees to the divorce.

· You’ve been separated for five years.

· The other person has deserted you for at least two years.

With the introduction of no-fault divorce, it is no longer necessary to justify why the marriage has broken down, you only need to confirm that the breakdown is irretrievable, but the divorce can still be challenged if, for example, jurisdiction is disputed.

How long will a no-fault divorce take?

In theory, a divorce could be completed within 7 months. There is a mandatory 20 week ‘wait’ between divorce application and the first stage of divorce (conditional order). This “cooling off” period ensures that there is a period of reflection before the marriage is formally ended. Once the conditional order is made there is an additional 6 week ‘wait’ before you can apply for a final order which legally ends the marriage.

Who pays the Court fee?

Usually if the parties issue proceedings as joint applicants they will agree to each pay half of the court fee. If no agreement is reached then the first applicant will need to pay in full. If they are issuing as a sole applicant, then the applicant will pay for the fee. Under the old rules the applicant could ask the Court to make an order that their costs were met by the other party. This is now only possible in very limited circumstances.

Can we use one solicitor if we are applying jointly for a no-fault divorce?

Some solicitors are agreeing to act for both parties if they are joint applicants. However, it is probably best to have separate independent legal advice especially if you need to address your financial separation alongside the divorce.

What if I don’t know where my ex-spouse lives?

An application can be served by e-mail, but a notice confirming such service must also be sent to the respondent’s postal address. If the address is unknown, then you will need to make an application to the court to serve by an alternative method.

What if they won’t co-operate with the divorce?

If you are a sole applicant, you can continue the divorce process without the consent of the respondent. Likewise, joint applications only require one party to proceed with the divorce. If a joint applicant wishes to proceed as a sole applicant to obtain a final order, they must give 14 days’ notice to the other party. If you are the respondent in a sole application, and you wish to move the divorce forward, but the applicant will not do so, if the conditional order has not been applied for, you must issue your own, new, divorce application and the timeline will restart for that new application. You can then only apply for the final order, three months from the earliest date on which the original applicant could have made their application.

About Jennifer Pollock

I joined Irwin Mitchell as a Senior Associate solicitor in 2021 bringing over 12 years of family law experience with me. I am passionate about providing the highest level of service to my clients with a personal touch. I practise exclusively in family law and specialise in all aspects of relationship breakdown, divorce, divorce in later life, cohabitation disputes, children issues and domestic abuse injunctions. I have specialist knowledge and expertise in advising high and medium net worth individuals on the financial aspects of separation including dealing with pension and business assets upon divorce.

About Irwin Mitchell

Irwin Mitchell provides legal and financial services to businesses and individuals operating from 17 locations across the UK. The firm is ranked as a market-leading legal services firm in the independent Legal 500 and Chambers UK guides to UK law with over 250 lawyers personally recommended. Irwin Mitchell Scotland LLP is a separate Scottish legal practice regulated by the Law Society of Scotland and has an office in Glasgow.

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Will I Lose My Personal and Business Assets in Divorce?
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Will I Lose My Personal and Business Assets in Divorce?

Published on
Kate Booth
Kate Booth
Solicitor, Head of Family & Matrimonial
Brindley, Twist, Tafft & James Solicitors (BTTJ)

Former partners have the right to claim a stake in anything from their ex’s business to a jackpot win unless the correct legal procedures have been followed to ensure full protection.

Without a financial order in place – which includes a clean break – divorcees are leaving themselves exposed to the risk of being forced to part with personal or business assets.

A divorce simply ends a marriage. Without a financial order couples are still financially tied in the eyes of the law. So if a person later builds a big nest egg, has a successful business, makes a good return on the sale of a property or wins the lottery, their ex has the right legally to make a claim against them.

Although dividing up a business and its assets is a lot more complicated for the courts, it is still not without risk. A lot of it comes down to personal circumstance.

A court will look at various things such as the length of the marriage, when the business began, the kind of business it is, its assets, how much it was worth in the past and by how much it has increased during the marriage – in some cases a business will be deemed as an asset capable of being divided.

Factors which help determine a court’s ruling include the financial circumstances of each of the individual parties, ensuring both sets of financial needs are met to accommodate a decent standard of living.

Where possible courts will look at meeting a spouse’s financial needs without dipping into non-matrimonial assets.

A person who has remarried would generally be unable to make a claim against their former spouse, but the person who remains unmarried can still apply.

People who end their marriages with online divorces, including couples who make a joint application, may be among those who later find themselves the subject of claims.

With no legal advice included in the ‘DIY divorces’ many remain unaware the divorce simply means the end of the marriage and not the end of financial ties.

It comes back to the first piece of advice we would always give which is do not leave things, even if very amicable at the point of divorce, as if one day circumstances change – for example unemployment, illness or injury – a court can only work from values of assets at the time the application is brought.

It may rule that an increase in the value of the business should not be attributed to the person making the claim, but there is always a danger that it might be.

For further details on BTTJ log on to www.bttj.com.

Read more articles by Brindley, Twist, Tafft & James Solicitors (BTTJ).

About Kate

Kate deals with private family law cases including divorce and related financial matters, children, injunction and cohabitation issues. She also advises clients in connection with pre-nuptial and cohabitation agreements.

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Understanding Prenuptial Agreements: A Comprehensive Guide for Couples
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Understanding Prenuptial Agreements: A Comprehensive Guide for Couples

Published on
Elspeth Kinder
Elspeth Kinder
Partner
JMW Solicitors LLP

Prenuptial agreements, often referred to as ‘prenups’, are legal documents that a couple signs before they get married or enter into a civil partnership. These agreements set out the ownership of the couple’s income, property and assets, and how these will be divided in the event of a divorce or dissolution.

There are several benefits to making a prenuptial agreement, as JMW explores in the following guide. We also explain what you should consider when deciding whether to proceed with a prenuptial agreement, and what the process of creating one involves.

Why Consider a Prenuptial Agreement?

Prenuptial agreements can, amongst other things, help to protect an individual’s property, set out out which assets are considered ‘non-matromonial’ (meaning they have been acquired prior to marriage), and dictate how inheritance should be treated if it is received during the marriage.

In the event of a divorce, a prenuptial agreement can determine how the financially-weaker party’s need for housing and income will be met,  reduce conflict over assets, and help to make a potentially painful and complicated process more straightforward.

Common Misconceptions About Prenuptial Agreements

Contrary to popular belief, prenuptial agreements are not just for wealthy couples. Individuals of any income bracket may find them beneficial, especially in protecting personal or business assets. Entering a prenuptial agreement does not necessarily suggest an expectation of divorce – it can be viewed as a step towards financial clarity and protection.

Another misconception is that prenuptial agreements can dictate the terms of a financial settlement during a divorce. In fact, the Family Court retains the final authority and it will reject any terms of a prenup that it considers to be unfair or unjust.

The Legalities of Prenuptial Agreements in the UK

Prenuptial agreements are not legally binding in England and Wales, however, the family court can attach significant weight to prenups, and it is for the party who seeks to depart from the terms of the agreement to persuade the court why the terms should not be upheld.

A properly drafted prenuptial agreement is likely to be upheld by the court depending on the circumstances surrounding it.

Essential Components of a Prenuptial Agreement

A comprehensive prenuptial agreement generally includes:

  • A breakdown of each party’s assets and liabilities.
  • Details as to which assets are non-matrimonial.
  • Information as to how the parties intend for the assets to be divided upon separation.
  • Details as to what property will be made available for each party.
  • Confirmation as to whether either party will receive maintenance payments and if so for how much and for how long.

A good pre-nuptial agreement will also contain a review clause that may be triggered by a number of events. For example, a review of the pre-nuptial agreement may take place once the parties have been married for 10 years or if the parties have a child/children.

Financial provisions for children may also be covered within the prenuptial agreement. However, the contact arrangements for the children are best reserved for discussion between the parties when the reality of the separation is known and a decision can be made that is in the best interests of the child.

How to Approach a Prenuptial Agreement

Initiating a conversation about a prenuptial agreement can be challenging. It requires open and honest communication about finances, which can sometimes be a sensitive subject. A strong prenuptial agreement will reflect a balance of interests, ensuring fairness for both parties. As with any legal process, an expert divorce solicitor will be able to help you understand the process and avoid any mistakes that could prove costly or time-consuming.

The Process of Creating a Prenuptial Agreement

The first step towards creating a prenuptial agreement involves a mutual discussion between the couple about their finances. Following this, solicitors for each party can provide independent advice and draft the agreement. Once the draft is prepared, it can be reviewed and revised. When both parties agree to the terms, they sign the prenuptial agreement.

In deciding whether a prenuptial agreement is valid and should be upheld, the Family Court will assess various aspects of it, including:

  • Whether each party had adequate independent legal advice before entering into the agreement.
  • Whether both parties’ understand the implications of the agreement.
  • Whether either party was pressured into making the agreement and whether there was sufficient time to consider the agreement before the wedding.
  • Whether the parties exchanged financial disclosure and whether the parties were open and honest about their respective resources.
  • Each party’s needs and whether the agreement meets them
  • The needs of any children of the family.

If the court finds issues with any of the above points, the agreement may be rejected and the court may make a decision as to how the parties assets are divided.

What About Postnuptial Agreements?

Postnuptial agreements are similar to prenuptial agreements, except they are entered into after the marriage or civil partnership has taken place. Couples may opt for a postnuptial agreement for a variety of reasons, such as changes in the couple’s financial situation after marriage, such as receiving an inheritance, starting a business, or substantial career advancement. Alternatively, couples may choose to enter into a postnuptial agreement as part of an attempt at reconciliation following marital difficulties.

The process for creating a postnuptial agreement is similar to that of a prenuptial agreement. Both types of agreements require full disclosure of assets, fairness to both parties, and independent legal advice to be considered valid.

Keep Your Finances and Property Secured

Prenuptial agreements offer couples a mechanism for financial protection and certainty. Though they may seem unromantic, their potential benefits are substantial. It is important for couples to have an open dialogue about their finances, and when handled properly, a prenuptial agreement can provide peace of mind and contribute towards a healthy, secure relationship.

About Elspeth Kinder

Elspeth joined JMW Solicitors in May 2018 as a Partner and Joint Head of the Family Team. Elspeth is recognised as a leader in her field by the legal directories Legal 500 and Chambers and Partners for her experience in all aspects of the law relating to personal relationships:

  • Separation and divorce;
  • Financial settlement following the breakdown of a relationship;
  • Cohabitation;
  • Arrangements for children following relationship breakdown including with regard to where a child should live and how much time they should spend with each parent as well as specific issues such as place of education and funding of school fees, choice of name and welfare of a child; and
  • Wealth protection by way of pre-nuptial agreements, post-nuptial agreements and cohabitation agreements.

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August's annual 'I do' could be a case of 'I don't' for Sheffield couples
Photo by Sandy Millar on Unsplash.

August’s Annual ‘I do’ Could Be a Case of ‘I don’t’ for Sheffield Couples

Published on
Bradie Pell
Bradie Pell
Partner and Head of Family Law
Graysons Solicitors

August is traditionally the most popular period for marriages, but falling numbers of couples getting hitched, together with the eye-watering costs of the ceremony at a time when many are struggling with household bills, is seeing more and more couples saying ‘I don’t’ and cohabiting instead.

Office for National Statistics (ONS) data confirmed that rates of marriage between men and women had already fallen to a record low in 2019. There were just 18.6 marriages per 1,000 unmarried men and 17.2 per 1,000 unmarried women – the lowest since records began in 1862.

When couples are getting married, it seems the wedding day is changing to keep costs down. A 2022 OnePoll survey commissioned by Gumtree found that a staggering two-thirds of couples planning to wed were scaling back plans to save money in the face of the cost of living crisis.

Everything from getting a friend to take the photos to changing to a date out of peak seasons were methods being used to cut costs.

There’s no doubt, for many couples, marriage isn’t as important as it was, and many will start by living together first.

Statistics show that the number of marriages has been in decline for many years, and the ongoing cost of living crisis has only exacerbated that situation.  But on a more positive note weddings are not the only thing in decline – divorce numbers are also falling at the moment.

Bradie Pell does have a word of warning for couples that do choose to cohabit.

She said: “When couples get married they commit to the sharing of their assets whereas cohabitation does not carry the same commitment.  That is by no means a foolproof option and parties are well advised to consider a formal cohabitation agreement if they are wanting to limit financial exposure in the event of a separation”.

The recent introduction of the ‘no fault’ divorce became the biggest shake-up in marriage laws for years. Despite an initial peak in divorce applications, they now appear to be falling.  Some cite this as another impact of the cost of living crisis.

Bradie Pell always urges couples to ensure they get the correct advice and exhaust all other options before seeking separation advice.

“At the end of the day, nobody wants to see a couple go through the emotional turmoil of a divorce, but if they do have to, obtaining proper legal advice is key. I think it’s very important that people properly understand the process they are entering into and what divorce might look like for them. Sometimes the option of marriage guidance counselling could be the first step.”

More articles by Bradie Pell.

About Bradie Pell

Bradie Pell is head of family law and partner at Graysons Solicitors in Sheffield.

She graduated from the University of Sheffield and qualified as a solicitor in January 2011.  She deals with the whole spectrum of legal issues that affect families, including divorce, separation, finances – with particular emphasis on pensions and property portfolios, injunctions, and matters relating to children.

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Cohabiting Partners  -  Kingsley Napley Comment on WEC Letter
Photo by Hutomo Abrianto on Unsplash.
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Cohabiting Partners  –  Kingsley Napley Comment on WEC Letter

Published on
Abby Buckland
Abby Buckland
Family and Divorce
Partner
Kingsley Napley

Commenting on the Women and Equalities Committee’s letter to Family Justice Minister Lord Bellamy, Abby Buckland, Family Law partner at Kingsley Napley LLP says:

“Given the trend of declining rates of marriage, an increase in the age of those getting married and a rise in cohabitation, the WEC is absolutely right to be urging the Government to do more to address the lack of protection for cohabitees and not to put this issue to the back of the queue.

“A review of the Matrimonial Causes Act and how finances are divided between separating spouses on divorce is, the Government has said, to take priority but if marriage is increasingly out of fashion, then this is not providing solutions to those families with arguably the greatest need.

“Cohabitants have limited rights on relationship breakdown resulting in stark and often unfair outcomes for the individuals affected and their children, particularly when compared to the protection which would have been afforded to them had they been married. The Government has repeatedly failed to extend legal protection in this area but there is overwhelming evidence to suggest this should be a priority.

“The WEC is right to highlight that progression is being side-lined with no sense of urgency or resolve.”

About Abby Buckland

Abby is a Partner in the Family and Divorce team in Kingsley Napley who undertakes matters involving all aspects of private family law and in particular complex financial issues and private children cases.

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Is There Any Way of 'Forcing' a Non-Residential Parent to See His/Her Children?
Photo by Daiga Ellaby on Unsplash.
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Is There Any Way of ‘Forcing’ a Non-Residential Parent to See His/Her Children?

Published on
Megan Bennie
Megan Bennie
Family Law Solicitor
Furley Page

For many co-parents, one of the most challenging aspects of separated parenting is when one parent does not choose to spend as much time with their child as the other parent thinks they ought to.   In some cases, a parent may not see their child at all, whether through choice or circumstance.

The short answer to the question of whether a parent can be forced to spend time with their child, which I know will be disappointing for a lot of parents, is no.  If a parent will not spend time with their child, then they cannot be forced to do so.   The courts are not prepared to make orders forcing contact, and it is difficult to see if and how such an order could be enforced, or whether such an order would be beneficial or productive.

It is worth remembering that even if one parent chooses not to see their child, they will still have a responsibility to make child maintenance payments and an application can be made to the Child Maintenance Service if it cannot be agreed directly.

However, where there is already an arrangement in place, by virtue of agreement or a court order, if the arrangement falters, there are steps that can be taken.

There will inevitably be circumstances in which contact does not take place for a period.  For example, illness, holidays, or other life circumstances. Where the change to the contact arrangement is tackled in a way that is sensitive to a child’s needs and courteous to the other parent, this need not be a major issue.

However, in circumstances where the withdrawal from contact/the relationship is for a prolonged period or comes suddenly with no explanation, it can leave children feeling let down, confused and as if they are not a priority.

It can also be distressing for the parent trying to facilitate the contact to see their child upset, and they may feel their efforts are not appreciated, leading to further breakdown in the relationship between the parents.  In such circumstances it may be more appropriate to look at how contact is structured and assess whether a different arrangement might benefit the child and promote contact, allowing for greater consistency.

There are many process options available for these discussions. For example, this could be addressed directly with the other parent, at mediation, by instructing a solicitor or, if all else fails, by making an application to the court:

  • What level is contact set at? The court will bear in mind what is going to be achievable for parents and children.  A parent who struggles to maintain a relationship with very regular contact sessions might be able to achieve less frequent contact, but if that contact is better quality – or actually takes place rather than being cancelled – it could be better for the child involved.
  • By what means is contact taking place? The parent-child relationship may be better maintained by means other than direct face-to-face contact time. Telephone or video calls could bridge the gap, or a parent in difficult circumstances might be able to accommodate those where spending time together in person simply isn’t possible.

For children who might have faced disappointment in the past through repeated or last-minute cancellations, calls or letters might fit more easily into their existing routine and limit the disruption they face, while still maintaining a relationship with the parent they don’t live with.

The age and capability of a child, as well as the effect and perception of any previous issues with contact, are important factors to consider.  What suits one child and promotes positive contact in a particular set of circumstances may not be suitable for another child or another set of circumstances.

If all else fails, the threat that future contact could be reduced can be a ‘stick rather than carrot’ approach to ensuring contact does go ahead.  The court can threaten to or even actually reduce contact, sometimes quite significantly, if it is apparent such a change is in the best interests of the child in question.  However, it would be exceedingly rare to have an order for no contact at all: the court tends to leave a door open for a parent/child relationship to continue except in the most severe of circumstances.

If you have questions about any aspects of child arrangements, whatever your situation, please do feel free to get in touch so one of the team of family law experts at Furley Page can help.

Contact Megan Bennie, Associate Solicitor in Furley Page’s family law team on 01227 763939 or email MEB@furleypage.co.uk.

Read more articles by Furley Page.

About Megan Bennie

Megan Bennie is an Associate in the family law team Furley Page.

Megan joined the team in 2021, having gained valuable previous experience at specialist family law firms featured in the Legal 500 directory.

Megan advises on all aspects of relationship breakdown, whether divorce or separation, including in relation to civil partnerships, dealing with issues such as the appropriate division of finances.

Megan also assists couples seeking to formalise arrangements through pre and post nuptial agreements and cohabitation (or living together) agreements. She can also assist with legal issues arising when cohabitation comes to an end whether there is a cohabitation agreement in place or not.

Megan can provide legal advice on a wide range of areas relating to children including arrangements for contact and who a child lives with, where a child lives (including relocation to another jurisdiction) and in relation to special guardianship and adoption.

Megan is primarily based at the Chatham office but is also available for meetings at either the Canterbury or Whitstable office.

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