We understand that separating with your partner can be one of the most stressful experiences in life, whether considering a formal separation, issuing divorce proceedings or dissolving a civil partnership.
We also understand that important decisions may need to be made and, as such, it is essential to take expert legal advice to ensure that your property and other assets are protected from an early stage as this can ultimately affect you and your family for many years to come.
Our family department offers a wealth of experience and takes great care in listening to your needs, to ensure that you have the best solicitor and/or lawyer with the right experience and approach to support you throughout the process.
When issuing a divorce proceeding or dissolving a civil partnership, the parties must have been married for a period of at least one year. This is referred to as the one-year marriage bar (for parties who have been married for less than one year, you will be required to seek a petition of nullity.
You will then need to establish that the marriage or partnership has irretrievably broken down. This can be shown by one of five facts:
1. Unreasonable behaviour – Conduct by you or your partner deemed sufficient to cause the irretrievable breakdown of the marriage
2. Adultery – Defined as voluntary sexual intercourse between a married person and a person who is not their spouse (this fact does not apply to a same sex marriage or civil partnership)
3. Desertion for at least two years – Desertion takes place when one spouse leaves the other spouse without their knowledge or agreement
4. Living separate and apart for two years (and both parties consent to a divorce)
5. Living apart for a period of five years (and does not require the consent of the other spouse)
A nullity of marriage is a declaration by a court that a marriage is null and void and that no valid marriage exist. This differs from divorce and civil partnership proceedings in that a divorce or civil partnership is a declaration bringing a valid marriage to an end.
Under the law of nullity, there are two types of marriages that may be annulled — void or voidable marriages.
Where a marriage is void, it is regarded as if it never took place. It is advisable to obtain a court order declaring that your marriage is annulled in order to avoid doubt where the parties are unclear as to whether a marriage is void.
Where a marriage is voidable, it is considered to be a valid marriage until a decree of annulment is made.
Void marriages are not valid where the parties are within the prohibited degree of relationship, for example the family relationship is too close, such as mother/son, father/daughter, sister/brother or aunt/nephew. However, stepfather/stepdaughter and stepmother/stepson can get married if they are both over the age of 21 and the child was not a child of the family in relation to the other while under the age of 18.
Other grounds for nullity include the situation where at the time of marriage either party was already married or a polygamous marriage was entered into outside England and Wales and either party was domiciled in England and Wales at the time of the marriage.
Voidable marriages arise where:
- the marriage has not been consummated owing to the incapacity of one party
- the marriage has not been consummated owing to the wilful refusal of the respondent not to consummate it
- either party to the marriage did not consent
- at the time of the marriage one of the parties was suffering a mental health disorder so as to be unfit for marriage
- at the time of the marriage the respondent was suffering from a venereal disease
- at the time of the marriage the respondent was pregnant by another man
- that an interim gender recognition certificate was issued to either party at the time of the marriage
- the respondent’s gender has changed from the gender at the time of the marriage
A petition will not be accepted if, before the marriage, the petitioner knew about the lack of consent, mental unfitness, pregnancy by another, venereal disease or acquired gender if three years have passed from the date of the marriage.
Incapacity can be either a physical or a mental condition, but it must be permanent and incurable.
Wilful refusal must be a definite decision come to without just excuse. The court will need to investigate the history of the marriage. An example may come about where the parties had married on the basis that they would not cohabit until a religious ceremony was complete and then one party refuses to go through the religious ceremony.
Our family team has a vast amount of experience in drafting nullity petitions. Our strengths lie in our ability to understand that every family is different and this enables us to tailor our services to meet your individual family needs.
A separation agreement can often be referred to as a “Deed of Separation” and is widely used between parties that are not seeking to bring an end to their marriage or civil partnership at that stage. This allows the parties some breathing space before entering into either a divorce or civil partnership petition should they choose to do so later.
Most separation agreements are drafted to allow for a period of a minimum of two years before either party decides to bring a divorce or civil partnership petition before the court on the basis of two years’ separation by consent, thus taking the need to rely on a fault-based petition.
The agreement can contain all the provisions to formalise the arrangements surrounding:
- where the parties shall live
- how the family home shall be divided
- how the chattels (contents) shall be divided
- where a child of the family shall live
- how much time the child spends with the other parent
- any other family issues that may need to be formalised
Our family team has a vast experience in drafting separation agreements and is here to help and support each family being able to move forward as amicably as possible.
The key legal difference between married and cohabiting couples is the financial provisions the court can make for the other party when they separate. These are much more limited for cohabiting couples.
Our family team understands the legal issues the parties face on the breakdown of a relationship if they are neither married nor in a civil partnership. Our team has a considerable level of knowledge and expertise in this complex area of law.
If you are cohabiting and your relationship has broken down, we can advise and guide you through all issues including claims for financial provision for children under Schedule 1 of the Children Act 1989 (housing, other capital payments for your child and/or the ongoing payment of school fees and maintenance) and the procedure and cost rules for cohabitants making claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA or TLATA).
Our family team has vast experience in drafting cohabitation agreements for clients who wish to enter into an agreement prior to cohabitation and thus seek to incorporate their arrangements for the future, including provisions for the division of property and other assets in the event of a separation.
We also advise our clients on the provisions of child maintenance under both the Child Maintenance Service and Schedule 1 of the Children Act 1989.
The most effective way to resolve the financial issues that can stem from a separation, divorce or civil partnership will differ from case to case, and parties may find that it is often more complex than they had initially thought. For this reason, it is imperative that a party to a financial dispute seeks legal advice as early as possible to avoid the dissipation of any matrimonial assets.
Our family team will encourage, wherever possible, the resolution of these issues through constructive negotiation, possibly using mediation and or an alternative dispute resolution route. However, sometimes it may be necessary to seek resolution through the courts.
When granting a decree of divorce, nullity, judicial separation or a dissolution of a civil partnership, the court may make various orders for a spouse or civil partner that may include, for example:
- periodical payments (monthly maintenance payments)
- secured provision (maintenance that is charged against an asset)
- lump sum (a capital cash payment)
- transfer of property or property adjustment order (where legal ownership of an asset is taken away from one spouse or partner and transferred to the other)
- pension attachment and pension sharing
When making such orders, the court must consider all the circumstances of the case and the factors listed in Section 25 of the Matrimonial Causes Act 1973.
Fairness and Equality
The starting point in any proceedings is that of an equality. However, the division of capital and income may be complex when the individual circumstances of a family come to be considered. Our team of experienced solicitors and lawyers can advise you on issues such as:
- whether all the capital assets should be divided equally, or should some assets owned by one party prior to the date of the marriage be excluded? This may include inheritance and pensions.
- what happens if a 50% share of the capital assets is inadequate to provide the re-housing of one of the spouses and who will the children of the family be living with during their minority?
- how should income be divided between the parties and should the party with a lower income have the support of a maintenance order?
- how can the children of the family be supported financially until they leave full-time education or attain the age of 18 years?
It is essential that all parties to the proceedings provide full and frank disclosure to their spouse and the court if proceedings are issued. There may be circumstances where some parties do not provide such full disclosure and attempt to hide assets behind family and offshore accounts. The court is well rehearsed in cases such as these and has wide powers to unravel those assets in which one spouse attempts to defeat the other spouse’s claims against such assets.
A decision whether to seek hidden assets can only be made after a careful analysis of the case to which it must then be weighed against the likely legal costs to be incurred in running an application under Section 37 of the Matrimonial Causes Act and the possible benefits to be achieved with an outcome. Our family team has a wealth of experience to advise you on the advantages and disadvantages of using this route.