Divorce is not usually a decision taken lightly, there is likely to have been a great deal of soul searching. It is almost certain that emotionally, one or both of the parties will be somewhat drained.
The first question to consider is whether a divorce is appropriate? If you reach a point where you feel something must be done, divorce is just one of several options. You could do nothing and hope that things get better; you could decide that action needs to be taken but that a divorce might be a step too far, in which case you could also consider either a ‘separation agreement’, or a ‘judicial separation’ as an alternative to a divorce.
So what is a separation agreement? If you don’t want to issue any proceedings in court, but you do want to set down how your finances are to be dealt with, then a separation agreement or deed of separation might be appropriate for you. A separation agreement can deal with matters such as care of any children, payment of maintenance and the division of assets. It can be used if parties want to live separately, or if they intend to stay living together for the sake of convenience.
A judicial separation means making an application to court for a decree on the same facts that would be stated in a divorce petition. The court can consider what happens to the children and, save for dealing with pensions, can make orders in regard to financial matters. What a decree of judicial separation doesn’t do is bring the marriage to an end – the parties remain married, although it does mean that the parties are no longer bound to live together. The primary reason for choosing this option is for religious reasons – as illustrated by the widely reported recent case of a catholic woman, who claimed that her solicitors were negligent in failing to take her faith into account when advising her in relation to her marriage and divorce. It should also be noted that an application for a decree of judicial separation, can be made within the first year of a marriage, whereas a divorce petition can only be filed after the first year.
However, if a party to the marriage believes that the marriage has irretrievably broken down. Then the appropriate option might well be a divorce.
The drafting and filing of the divorce petition is described by some as a paper exercise. It requires the accurate completion of various forms, but for those involved, its significance is immense, being the first step to bring to an end one stage in their lives and move forward to a new chapter.
If there are children, then, no doubt, arrangements for them will have been in mind throughout. Their mother and father will appreciate the importance of reaching decisions about where the children will live and the time that they will spend with each parent.
These decisions will have a significant impact on planning financially for the future, something else that needs to be dealt with at this emotionally charged juncture.
Both parties must consider the multitude of financial matters that arise. What are each party’s income and capital needs, immediately and over the coming years? What will happen to the house? What about all the other matrimonial assets? What about savings, pensions, life policies? Is a clean break order appropriate? (A clean break order is intended to bring to a conclusion all the monetary claims between the parties and allow them to move on with their lives with certainty as to their financial position). The list goes on.
Decisions reached now will effect the parties for years to come and it is essential that needs are correctly identified, ways to meet those needs considered, discussed and, once agreed, confirmed by way of a court order. The advantage of a court order is that it will ensure that any agreement that you’ve reached is binding, providing stability and security for all the family members.
Therefore, divorce is not just a paper exercise, it’s key to people’s lives. It’s not something to be taken lightly, where decisions can be made on the run and it’s not something to deal with at some point, sometime down the line.
Divorce involves the whole family and is the springboard to, what should be a better future for those involved. Such an important change requires careful thought, planning and individual expert advice across a range of issues. Decisions must be taken with the head at a time when perceived needs are often prompted more by the heart.
The Family team at SAS Daniels are all solicitors and members of Resolution, a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems. We understand the multitude of issues facing separating couples and are there to help with the decisions that have to be made.
If you would like to talk to a family solicitor, please contact our Family team on 01625 442100.