If you are reading this, the notion of foreign territory may feel all too familiar.
Plainly, nobody gets married with a view to later divorcing and the prospect of embarking on the process can sometimes feel emotionally and financially daunting. Where do you go from here?
First and foremost, the division of a family’s assets upon divorce is discretionary.
There is no ‘one size fits all’ approach and the court’s discretion is underpinned by key legal principles. Therefore, the outcome achieved by a friend or family member may be completely different to what is considered the right and appropriate outcome in your case.
Each case is considered on its own facts taking into account all of individual circumstances.
1. Legal advice
Obtaining legal advice is first on the checklist. Knowledge is key. This remains the case whether you are completely amicable or on less favourable terms with your partner.
Early advice, educating yourself on your options, possible outcomes and costs can often pave the way for constructive conversations with your ex-partner; provided they also receive legal advice.
Speaking to a solicitor does not have to mean the start of a long drawn out battle. It can actually often mean the exact opposite and can be particularly useful if you wish to have those discussions with your partner with the children in mind.
2. Financial disclosure
Whether you mediate, negotiate directly with your partner, through solicitors or with the assistance of the family court, you need to understand what is in the ‘pot’. You would not buy a car without understanding the model, mileage and risks. In the same way, a great amount of care needs to be taken when looking at the assets to ensure you are negotiating with knowledge of all of the family assets.
Those who feel they are financially in the dark or may not have organised the family finances do not need to fear. You are entitled to full and frank disclosure and to receive advice on this disclosure.
3. Family home
Leaving the family home does not change your ability to make a claim in respect of the property.
However, there can be some advantages to staying put. That said, you should not be in an unsafe environment and urgent legal advice should be sought about the various options. There are also ways of protecting your interest if your partner solely owns the property.
4. The reasons for divorce do not affect the financial settlement
As of 6th April 2022, spouses can embark on the divorce procedure without apportioning blame to either party.
Prior to this, the reasons for the breakdown of the marriage had no bearing when determining the division of the assets; except in exceptional circumstances. This remains the case. The court’s priority is reaching a fair resolution rather than punishing a party.
Regardless of whether the debt was taken out in your sole name or as a joint debt, if the debt was incurred for the benefit of the family, then it should be taken into account when considering the division of the family’s assets upon divorce.
The court cannot reallocate the debt to the other party but it can for instance justify an unequal share of the other assets so that it is taken into account.
You should ensure you know all the passwords to your accounts.
It would be prudent to undergo a ‘security cleanse’ upon separation and change those passwords to accounts that you believe or suspect your partner may have access to. It sometimes becomes too easy to be tempted to look at your spouse’s accounts when emotions and/or curiosity is heightened.
You have a right to privacy and to invade this privacy can have serious consequences.
Finally, there is never a right time to ‘divorce’ nor is there a benchmark to having a ‘good’ divorce. Equipping yourself with knowledge and support is the best way to ensure you make the right decisions for your family when divorcing.
About Hannah Pilling
Hannah has experience in a wide range of family law matters, including divorce, separation and consequent matrimonial proceedings, securing financial settlements upon divorce, and negotiating arrangements for children. www.jmw.co.uk