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13 June 2018 0 Comments
Posted in Family, Opinion

7 things you might not know about divorce

Posted by , Partner

Vandana Chitroda, a partner in our family team, has recently been featured in Financial Times to discuss divorce. Here she explores the 7 things that you need to know about it…

  1. There is no such thing as a ‘quickie’ divorce

We often see reports in the press about high profile individuals and celebrities being granted a ‘quickie’ divorce. There is no such thing.  What is being referred to is the pronouncement of decree nisi in open court. The decree nisi gives entitlement to the petitioning party to a divorce and the final divorce certificate can only be granted six weeks later. In reality, a divorce takes at least 4-6 months to conclude and it can be longer if the parties need to reach a financial settlement.

  1. It is possible to have a ‘no fault’ divorce

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 they have been separated for five years. The legal community is keen for the divorce process to be streamlined to a ‘no fault’ based divorce system to decrease tension and hostility during the process.

There are likely to be many couples in loveless marriages wishing to divorce, but because their spouse may not have behaved badly, they will have to wait for two years if their spouse consents to the divorce or for five years if they don’t to get divorced.

The case of Owens in 2017 highlighted the need for there to be a new system after the first instance court and the court of appeal refused to grant Mrs Owens a divorce based on her allegations of unreasonable behaviour.  The Supreme Court’s decision is awaited imminently and if Mrs Owen’s divorce is granted, this will demonstrate a clear acceptance by the judiciary that if one party no longer wishes to remain married, this should be sufficient to prove that the marriage has broken down irretrievably. Unfortunately, if Mrs Owens’ divorce is not granted based on the facts she has presented to the court, she will have to wait until the conclusion of 5 years since separation from her husband in order to be divorced.

  1. You can be sent to court for breaching a court order

This is not usually the first resort of the court. Where a party has persistently breached orders of the court, a prison sentence can be imposed. Recently, in the case of Hart, the Court of Appeal upheld the decision of the High Court to send the husband to prison for 14 months for serious and ongoing breaches of court orders. In the much publicised case of Young in 2013, the late Mr Young was sentenced to six months imprisonment for contempt for persistent breaches of orders for financial disclosure.

  1. You can apply for a divorce online

As of this month (May 2018), a new online divorce system has been made available to members of the public in an effort to modernise the court system. The online system is supposed to be simple and intuitive so that people without legal representation can complete the process easily.

  1. The end of the ‘meal ticket for life’

The recent case of Wright demonstrates the changing view of the courts when it comes to maintenance for life. It was a common concept where there had been a medium to long marriage and where the wife stayed home to raise the children, the courts could agree a maintenance payment for life. In a recent case, the courts said that divorcees with children aged over seven should work for a living.  The judge in that case, Lord Justice Pitchfor, said that she (Mrs Wright) should “just get on with it” and seek a job like a number of other women with children.

  1. London remains the ‘divorce capital’ of the world

English Law is known to be much more generous to the financially weaker party than many other jurisdictions around the world which is why, where possible, people come to London to get divorced. The courts have to be satisfied in the first instance that the English courts are the correct jurisdiction for the 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.

  1. Prenups are not legally binding

Prenups are not legally binding in the UK but they can carry decisive ‘weight’ and be enforced by the Court in the right circumstances.

As the law currently stands, the Court may not attach weight to a prenup for a variety of reasons including where:

  • One of the parties (or both) were not transparent about their financial affairs at the time of signing the prenup.
  • One or both of the parties did not understand the implications of the agreement as they had not taken independent legal advice prior to signing the prenup.
  • The agreement was signed under duress.
  • It was signed less than three weeks before the wedding
  • It didn’t make provision for potential future events, eg birth of children, disability or unemployment.

Many people enter in to prenups where they want to protect an inheritance or pre-acquired wealth. Provided the agreement was drawn up in satisfaction of the above factors, it is likely to be upheld by the courts.

 

 

Comments to be attributed to Vandana Chitroda, a partner in the London Family law team at Royds Withy King. Vandana can be reached on:

020 7583 2222     Email usvandana.chitroda@roydswithyking.com

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