What to Expect When You're Divorcing

For the most part, the UK’s family courts function about as well as can reasonably be expected of any court system. Their workings may however still take the average person by surprise. With that in mind, Head of Family Law at K J Smith Solicitors, Kerry Smith shares some advice on what to expect when you’re divorcing.

You need to provide a legally-acceptable reason

There are five grounds for divorce, this includes the adultery, desertion and unreasonable behaviors, which can all eventually lead to an irretrievable breakdown of the marriage.

This can, however, be demonstrated in one of three ways. These are adultery, unreasonable behaviour and separation.

Separation can be further categorized into desertion or voluntary separation. In the case of desertion, the deserted party can apply for divorce after two years.

The deserter does not have to consent. In the case of voluntary separation, a couple can divorce after two years if both agree or after five years if either party objects.

For completeness, at present, a quirk of UK law is that the legal definition of adultery only recognizes extra-marital affairs between people of the opposite sex. Adultery between same-sex couples may, however, be classed as unreasonable behaviour.

Judges have the final say on child welfare

Judges generally vastly prefer it when parents come up with a workable plan for child-care and maintenance. Parents should not, however, expect their plan just to be rubber-stamped. Judges will look at these plans very carefully and if they are not happy with them, they will reject them.

This is one of the reasons why it’s best to have child-related arrangements checked over by at least one professional before presenting them to a judge. It’s often best if they are checked by a mediator in the first instance and then double-checked by a lawyer.

Courts aim to divide assets fairly

The starting point of any divorce settlement is usually a 50/50 split of matrimonial assets. This is, however, not necessarily the end-point. In simple terms, need takes precedence over equity.

When judges assess need, they will look at how the marriage has impacted each party’s ability to provide for themselves in the future. For example, if one party has spent an extended period as a home-maker, they may find it difficult to find employment quickly.

A judge may therefore award them a greater share of the matrimonial assets and/or maintenance to help ease the transition. If this is still not sufficient to meet their needs, a judge may include non-matrimonial assets as part of the settlement.

Assuming both parties have their needs met, judges will try to divide the remaining assets fairly. This does not necessarily mean a 50/50 split. Each case will be assessed on its own merits and for the most part, the reason for the divorce will be ignored.

Pre-nuptial agreements are a legal grey area

At present, UK courts are not bound to honour prenuptial agreements. In practice, they are likely to do so as long as two conditions are met. Firstly, they meet the criteria for a legally-binding contract. Secondly, they make sufficient provision for the needs of both parties and any children.

The second point means that prenups can become invalid over the course of a marriage, particularly if it produces children. They can, however, be replaced by post-nups. Again, courts are not bound to accept these but will generally give them weight as long as they are robust.

Maintenance for life is disappearing

Maintenance for life dates back to a time when both education and the job market had vastly more opportunities for men than they did for women. Now, courts are much more likely to award time-limited support.

This allows time for children to grow up and/or for a divorcing party to improve their chances of finding employment. It does not, however, provide a meal ticket for life.