Getting Divorced? Don't Know Where To Start

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Getting Divorced? Don’t Know Where To Start

Deciding to separate is for most people a momentous decision. But having taken the plunge, what are the practical steps needed to put the wheels in motion?

We often say that lawyers (even us!) should very rarely be your first port of call, unless for example you are in need of urgent personal protection, or you have a justified fear that assets are being hidden by your former partner. For everyone else, consider what non-legal help your family needs.

There are lots of excellent resources out there which are dedicated to helping you address those aspects of divorce constructively and with compassion, such as relationship therapists and divorce coaches. You can find more information here: ‘5 Top Tips at the beginning of a relationship breakdown’.

But when you decide the time is right to move forward and you feel ready to begin addressing the division of your finances and arrangements for your children, how should you go about it? Be aware that the law applies to couples differently according to their circumstances, and in particular there are major differences in how the Family Court treats married and unmarried couples relating to finances:

If you have children together:

The Family Court recognises that both parents are vital to a child’s well-being, and there is a presumption that both parents should be involved in their child’s life provided this is safe for the child.
Recent studies have shown that over a third of separating parents end up in court in respect of the arrangements for their children. Court proceedings have been found to cause emotional harm, not only to the adults involved, but also to their children. The sooner you can have a constructive discussion about the arrangements for your children, the better, as adversarial legal proceedings drive people apart and make it much harder to co-parent in the future. If you are stuck, consider getting joint impartial advice, so you can both hear what a Judge would be likely to do, as this may break the deadlock without the stress, time and expense of Court proceedings.
You will find some helpful suggestions as to how to work together effectively here.

What about finances if you are an unmarried couple without children?

Your partner will have no automatic legal claim against your assets or income. He/she may be able to assert a right of ownership in respect of property you hold, either due to the way the asset was purchased or because of the way you have each behaved since.
If you are in an unmarried relationship, ensure you get legal advice to protect your position, ideally before you purchase property or assets, or else afterwards, so you both understand who owns the asset. Property claims can be complex and the more you can do to clarify the situation before you separate, the better.

What about finances if you are an unmarried couple with children?

Your ex-partner may be entitled to make legal claims against you for financial provision for any children you have together. This can include maintenance and a fund for housing (although any housing fund would normally be held on trust and returned to you when your child becomes an adult).
It is irrelevant whether you are in a relationship or not, or whether the child was planned or not.
The law in this area is complex and you should get urgent legal advice when you are contemplating separation or when you find out that an ex-partner is expecting a baby. In the most general terms, the sooner a settlement is agreed the better, as the court can order you to pay not only your own legal fees, but also the legal fees of your former partner, which can rapidly escalate.

What about finances if you are a married couple planning to divorce?

Each married partner is entitled to make a financial claim against the other, whether you have children or not. The value of that claim will depend on a variety of factors, including your separate financial needs going forwards, what financial resources were built up between you during the marriage and what you each brought into the marriage. This, again, is a complex area and you and your partner should ensure you obtain legal advice at the earliest opportunity, either together or separately.
Please be aware that any agreement you reach with your ex will only become legally watertight if it is made into a Court Order. A judge will only convert your agreement into a Court Order if they are satisfied it is fair in the eyes of the law, so the sooner you get legal advice on what the Court would view as fair the sooner you can negotiate knowing your deal will be endorsed by the Court.

Divorce Proceedings

If you are unmarried, please be aware that whatever you read in the papers, there is no such thing as a ‘common law marriage’. No matter how long you live with someone, unless you are legally married a Court will not recognise it.
For married couples, ‘No-fault Divorce’ will be a big improvement once it has been implemented (unlikely before Autumn 2021) but for now, couples wishing to divorce will have to make do with the old procedure. Here is an overview of how our process works.
Even today, for the great majority of couples, divorce proceedings themselves will be uncontroversial – they are simply the process by which your legal status changes from ‘married’ to ‘divorced’. It is very rare that the grounds upon which your divorce is granted will have any effect at all on the arrangements for your children or division of your finances.

Where can you get help to resolve these issues?

There are a number of options available for getting legal advice on family breakdown. We believe it is crucially important for couples to know all the options available, so they can pick and choose the option that works best for them.

Be aware that many couples move between these options, so may start with a divorce coach or mediation, move to individual solicitors, get joint advice through The Divorce Surgery and then negotiate directly themselves. There is no one size fits all, and you should choose what works for you. We talk couples through all the options, and what might work for them, at our free of charge Introductory Sessions.

If you have more questions about this topic or any other legal issues arising on divorce or separation, please do get in touch as we are always happy to help. You can call us on 0203 488 4475 or email contact@thedivorcesurgery.co.uk.

Note: This is a summary of considerations only and is intended to help identify situations where you should get legal advice, and why. It should not be used in place of legal advice, which will also depend on the precise circumstances of each individual situation.

Author Name: Editor

Published content by The Divorce Surgery Editorial Team.