Divorce and dissolving civil partnerships

When a marriage is at an end, the ‘empty shell’ can be legally disposed of by presenting a divorce petition to the Family Court. Providing the petition remains undefended, the procedure is very straightforward and should not cause any difficulties.

 

When a marriage is at an end you must get organized. You will need to:

    • open your own bank account and close joint accounts;
    • amend your will if you have one, and if not, consider making a will;
    • make a list of everything in the house, such as furniture and personal items and all other family assets, including vehicles and other property;
    • prepare a list of debts and money owed on HP and credit agreements, credit cards and bank overdrafts et cetera, for which you are liable;
    • if you own your home, find out how much is owing on the mortgage;
    • if you are renting your home, find out whose names are on the lease;
    • make a note of household accounts in your partner’s name;
    • consider whether you need to open new accounts for personal items such as your mobile phone.

    There are documents and papers which you should secure and hold the originals or take copies whilst you have the opportunity:

    • the marriage certificate,
    • your passport and passports for children,
    • birth certificates,
    • bank statements for the past 12 months,
    • last tax return and notice of assessment,
    • titles of ownership and property deeds,
    • pension Cash Equivalent Transfer Value (CETV),
    • loan agreements,
    • guarantees,
    • wills,
    • car registration, engine number, vehicle identification number and current value,
    • mortgage and property details (e.g. council rates),
    • rental agreement,
    • insurance policies (e.g. home, contents, car, and superannuation details).

    You must give serious and realistic thought to your financial situation and how much money you are going to need to live on. What benefits are going to be available? Consider whether you need to go back to studying, seek or change your employment or start you own business.

Sever the joint tenancy

 

Most married couples will have had their matrimonial home conveyed to them to own as joint tenants. This means that in the event of your death, your share of the home will pass automatically to your ex as your joint tenant, irrespective of any other wish set out in your will. This is unlikely to be what you now wish as you are divorcing, although it may well have been when you bought the house.

What is more likely to be what you wish and more appropriate when a marriage has broken down is for you to own the property as tenants in common. By serving a simple notice of severance on your spouse, the joint tenancy can be converted into a tenancy in common. Then If you die, your share of the property can pass to the beneficiary in your will. This will enable you to decide what would happen to your share of the property in the event of your death and enable you to make the desired provision in your will.

A detailed guide with full instructions and examples of the forms needed to sever a joint tenancy is here.

 

Close joint bank accounts

 

If you have a joint account with your spouse, you will be liable for all dealings on that account. If your spouse should decide to empty the account, there will be nothing you can do about it and may be left with no money to live or pay bills you are responsible for. If they run up the account and incur an overdraft, you will be liable. You should therefore close the account, open a new one in your name and transfer into it the money from the old joint account to which you are entitled.

If you do not wish to close the account, inform your bank of the position and that no withdrawals should be made without your approval.

 

Freezing orders or injunctions

 

On the breakdown of a marriage or civil partnership, one party may attempt to dispose of assets before the financial issues have been decided, in order to reduce what the other party might receive in settlement. If there is this possibility of your spouse disposing of or hiding away any of the family assets beyond the reach of the court, you will be able to obtain an order from a judge preventing a disposal.

Section 37 of the Matrimonial Causes Act 1973 gives the court power to make an order in matrimonial proceedings restraining a party to those proceedings from disposing of any assets which may be the subject of a claim in the proceedings. The section is designed specifically to avoid transactions intended to prevent or reduce financial claims. Applications can and often are made without notice to the other spouse.

The court will not make an order unless it is satisfied on balance that:

  • the other spouse is about to deal with the asset concerned;
  • the effect of the proposed dealing would be to defeat or reduce the other spouse’s claim, or enforcement of an existing order;
  • the purpose of the disposal is to defeat or reduce the financial provision for the other party.

The court will consider each case on its own particular facts. No distinction is drawn between different types of assets, and a Section 37 order can, therefore, be obtained in a variety of different circumstances, such as where a party is proposing to transfer monies from a bank account to a third party, or where one party is proposing to sell or transfer commercial or residential premises.

For the purposes of these injunctions, it does not matter whether one or both parties have an interest in the asset concerned. The court has very wide powers and can make an order in respect of an asset wherever it is situated, whether in this country or abroad. However, if the asset is situated outside England and Wales, a court might refuse to make an order where the order would be unenforceable. The power is also available to the court where a spouse is about to transfer an asset out of the jurisdiction.

Before an application can be made for an injunction to restrain the dealing with an asset, an application for financial provision must be issued. This in itself means that there must be divorce proceedings. If a general financial application has not been made and the need for an injunction is urgent, the general financial application can be issued at the same time as the application for the injunction, or the court may accept an undertaking that the financial application will be issued within a specified period.

A detailed guide with full instructions and examples of an application for a matrimonial freezing order is available here.

Register a matrimonial home rights notice

 

If, for any reason, your name is not on the title to the matrimonial home, you must register a notice of your rights over the property. This will prevent your spouse from selling or borrowing money on the security of the property without your knowledge.

You can protect your potential share in the property by way of a notice known as the ‘Matrimonial Home Rights’. This will be registered with the Land Registry against that particular property and prevent it from being sold, transferred, or re-mortgaged without your agreement. The notice cannot be removed until a financial settlement is either agreed by you or ordered by the court.

The rights provided include:

  • the right of a non-owning spouse (or civil partner) to occupy the matrimonial home, and to enforce the same by obtaining an ‘occupation order’;
  • the right that in certain circumstances one spouse’s rights of occupation shall be a charge on the estate of the other, and that subject to registration; such a charge can bind third parties, including mortgagees;
  • a number of procedural provisions which seek to protect the non-owning spouse in occupation, in the event of proceedings for possession by a mortgagee.

This notice is only valid while you are married (i.e. until the decree absolute is issued within the divorce proceedings), unless there is a court order to the contrary.

A detailed guide with full instructions and examples of an application to register a matrimonial home rights charge is available here.

Maintenance pending suit

 

This is an interim maintenance order to take effect until a final order can be made. Following the filing of a petition for divorce, nullity or judicial separation, a party can apply for a maintenance order, known as maintenance pending suit.

As the maintenance pending suit order will be for a limited period, full investigation of the spouses’ resources and financial needs will not be undertaken. That may come later, when final orders are sought. The test is just what the other spouse can afford to pay for maintenance, given their own financial requirements and liabilities.

The Grounds for Divorce

1. The first of the five grounds for divorce is adultery. The petitioner must show that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent. Therefore, you must show not only adultery but also allege that you find it intolerable to live with the respondent. It is not, however, a requirement that the intolerability is a consequence of the adultery.

2. The second and most common ground is unreasonable behaviour. The petitioner must show ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.
This is different from the question of whether the respondent has behaved unreasonably. The question for the court is whether the respondent has behaved in such a way that this petitioner could not reasonably be expected to live with this respondent. A subjective test.

3. The third ground is desertion, which is rarely applicable.

4. The fourth is 2 years separation, where you and and your spouse have lived separately for over 2 years and you both agree to a divorce.

5. The fifth and final ground is 5 years separation, when consent is not required.

Special rules of divorce

There are special rules before you can get a divorce

  • A petition for divorce (but not judicial separation) cannot be filed during the first 12 months of a marriage.
  • The reconciliation provisions. These apply to the behaviour fact, and in a slightly different form to adultery petitions: if a petition is not issued within 6 months of a fact relied upon, this fact may be disregarded.

Petitioning for Divorce

To apply for a divorce you must file at court:

  • An application for divorce in Form D8 with a copy for service on your spouse.
  • the original marriage certificate (not a photocopy) or a certified copy
  • the court fee. At present, this is £550. However, fee exemptions or remissions are available for those on low incomes or state benefits.

You may now be able to apply online at

Documents will be checked by the court staff, and a copy of the divorce petition sent to the respondent with a form prepared by the court for him or her to acknowledge service of the petition. They must return this form to the court within 7 days, saying whether they accept that the marriage has irretrievably broken down and will agree to a divorce.

If the acknowledgment of service is returned indicating an intention not to defend it, the court will send a copy of the acknowledgment to the petitioner, who must then swear a statement to confirm that what they have said in the petition is true. This takes the place of a formal attendance before a judge at the court.

Once the statement has been signed, the divorce is entered for pronouncement of a decree nisi. There is no easy going back once this has been done, and here will be no need for anyone to attend court.

You will not, however, be finally divorced at this stage, as the decree nisi must be made absolute. This can be applied for on further application after 6 weeks following the making of the decree nisi.

On pronouncement of decree absolute, the marriage is dissolved, and you and your former spouse will be free to remarry if you so wish. The pronouncement of the decree absolute has an important effect on any will made by the parties, and consideration should always be given to making a new will. Also, it is essential that any applications to the court for a financial order is made before decree absolute. Although you will be divorced, the financial links of the marriage will continue until dismissed by an order of the court.

Defending a divorce petition

Defending a divorce is rarely possible or practical. There are however circumstances when you may wish to oppose a divorce, and as is so often the case it relates to money. You could be better off financially married than otherwise. You must accept however, as any judge will do, that a marriage which one party wishes to bring to and end is over, little more than a shell and best brought to an end.

The result of a successful defence is that you stay married. However, a partner filing for divorce is generally a clear indication that a marriage has broken down, will not be happy, and is not worth defending. You can always file a statement denying the facts alleged in the divorce petition, but nevertheless confirming that you do not intend to defend. Often both spouses have equally valid reasons for divorce, but this is not a reason to defend one partner’s petition.

The reason you wish to defend the divorce may be tactical or a genuine belief that the marriage has not irretrievably broken down and given time could be mended. Entering a defence or – as more accurately as it should be called – an answer to a divorce petition, will certainly slow things down and give your spouse time for reflection. They could change their mind and agree to give the marriage another chance or agree to a period of separation. You must however always remember that if you defend the petition and the defence does not succeed it is likely that you will be ordered to pay the legal costs which will have been incurred. Defending a divorce can be a costly and time-consuming process.

The respondent to a divorce petition has the right to defend and contest a divorce petition by challenging the legal basis of the petition. The sole and only ground for divorce as we have seen is that the marriage has irretrievably broken down. The problem in denying this is that the test is subjective. Therefore, if a petitioner believes that the marriage has irretrievably broken down, it is extremely difficult and almost impossible to prove otherwise. After all, a marriage takes two people and if one believes that it has broken down there is no marriage.

The irretrievable breakdown of the marriage must also however be shown by one of the five facts. Thus, the respondent to an adultery petition may deny the adultery, and a judge will then have to hear the evidence and decide whether or not the act of adultery took place. Separation is entirely a question of fact and when consent is required for two years separation, it is simply a case of withholding that consent and the petition will not be able to proceed. If the petition is based upon five years separation, there is a defence when there has either been a period of cohabitation with your spouse within that period or the statutory defence (which applies only to this ground) of grave financial hardship.

If you decide to defend and enter an answer to your spouse’s petition, it will be for them as petitioner to carry the burden of proof and prove to the satisfaction of the court that the marriage has irretrievably broken down as a consequence of the ground set out in their petition. You will need to set out the reasons why you are defending the petition and a judge will give directions requiring you and your spouse to submit the evidence which you each intend to rely upon. Once you have both filed statements of your evidence, a hearing will be fixed at which a judge will decide whether the petitioner is entitled to a decree of divorce.

There can be a good reason to defend a divorce if there is a dispute as to which country should deal with consequential financial issues which are likely to be disputed. Different jurisdictions deal with financial issues on divorce in different ways.  If you wish for financial claims to be dealt with under a particular jurisdiction, a successful defence may be of great importance in establishing priority for a divorce proceeding in a particular country.

An answer defending a petition can be accompanied by a cross petition, which gives the respondents reasons to evidence the breakdown of the marriage and request for a divorce on his petition. If another third party is referred to, this time by the respondent, this party is called a ‘party cited’. There is however usually little point in cross petitioning.

 

 

Alternatives to Divorce

Taking a break from each other can be a good idea when a marriage is in trouble. If you’re not sure where the relationship is going and you want to know if your life would improve if you were apart, then consider living separately for a period of time. Remember however that you will still be married, and that the legal ties and responsibilities of marriage will remain unaffected by the separation.

To be separated, all you have to do is live apart. It is quite possible to simply start living separately and apart without taking any legal steps. If you do, and you subsequently divorce, your financial position both at the time of separation and at the time of the divorce will be taken into account when deciding financial issues. Therefore, if your financial situation changes during the period of separation, this will be taken into account, if you subsequently divorce.

Things to consider, if you are to separate, are making or changing your will, severing a joint tenancy on your home and opening separate bank accounts whilst closing joint accounts. And most importantly, agreeing the financial arrangements with your spouse and recording the agreement in a formal separation agreement. Thereafter, keep your financial affairs separate.

 

Separation agreements

If the separation is likely to be for any significant period of time, you should always make a written separation agreement. It will not bind a court on divorce, as the court will always have an absolute discretion in the division of matrimonial assets, but it will be highly persuasive and will show what was agreed financially at the time of separation. It will also be a useful working document to help you consider and decide on the separation arrangements and will be a reference in the event of dispute.

A detailed guide with a number of examples of separation agreements is available here.

Judicial separation

A further, but less common alternative to divorce is to judicially separate. Few people judicially separate, as many would then go on to divorce at a later stage, and so incur the cost of two different legal procedures. Although not used very often, judicial separation is a halfway house that falls short of a divorce, but involves the court’s recognising in a formal decree that you and your spouse are living apart. It will also enable the court to make orders relating to maintenance and such things as who will live in the house, if this is not agreed. The marriage still exists, which can be important if there are pension rights that need to be maintained.

The grounds for judicial separation are the same as for divorce, the main difference being that it is not necessary to show that the marriage has irretrievably broken down.

A decree of judicial separation has three main effects:

(1) You and your spouse are no longer obliged to live together;

(2) The court can exercise all the powers which it has to divide the matrimonial property and make orders as in divorce;

(3) The decree operates just like a divorce in terms of its effect on any will – the spouse no longer takes any benefit unless a new will is made, specifically stating that is to be the case.

You will probably only want to consider a judicial separation, if:

  1. Either you or your spouse are opposed to divorce – typically for religious reasons;
  2. There is an absolute bar to divorce within the first year of a marriage. Judicial separation may be all that is available, if you wish to formalise the break by court proceedings within that first year;
  3. For some reason, it is not possible to prove the irretrievable breakdown of the marriage as necessary for a divorce.

The procedure for obtaining a judicial separation is similar to the divorce process, save that there is only one decree (that of judicial separation) and the court does not make a conditional decree.

 

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