07 January, 2021
The start of any new year is renowned for new beginnings. It is gives people purpose, and you will see individuals set out with good intentions to make positive changes in their lives. With the challenges that many faced in 2020, now more than ever individuals will be looking forward to 2021 and the fresh start a new year can bring. For some, that fresh start may mean a separation, or getting round to finalising an end to their marriage. Parties are recommended to contact a specialist family lawyer at the earliest opportunity to ensure that they can obtain the right advice to help their individual circumstances but to assist parties who are contemplating a separation we have put together some answers to commonly asked questions:
If your separation is less than two years, then at this time you can only issue a divorce petition based upon your spouses adultery or unreasonable behaviour. It is hopeful that this year will see the introduction of the "no fault" divorce but it is unlikely to come into force until the end of 2021.
You would need to wait a period of 2 years and then with both parties consent you can issue divorce proceedings. The other alternatives is if your spouse has deserted you for a period of two years or more, or the separation has been 5 years or more.
There have been some delays with the divorce courts in issuing new applications, but the time now seems to be reducing, In addition, it has now become more accessible to issue divorce proceedings online and this often means a more timely conclusion.
If parties are married then whatever asset is in each of their respective names, whether jointly or individually, will be considered in any matrimonial settlement. Parties will be under a duty to provide each other with full and frank disclosure of their financial information to ascertain what is in the "matrimonial pot" before considering any division of assets.
However you have reached a financial settlement whether it was done directly, through mediation or negotiations between lawyers, it is recommended that within divorce proceedings the agreement is recorded in a Consent Order. If the Court consider the agreement to be fair then they will seal the Order making it a legally binding document. If drafted correctly it would mean that neither you or your spouse should be able to bring any further claims for consideration of the matrimonial finances in the future. In most cases the Order can be obtained without the need to attend Court.
The Court will only seal a Consent Order if you have obtained your Decree Nisi of divorce. If you wish to record your settlement in a legal document you can do so in a Separation Agreement. A Separation Agreement can accurately record the intentions of both parties upon separation. It is not a legally binding document but if drafted correctly and both parties have provided financial disclosure and obtained independent legal advice, it can be persuasive to a Court if ever challenged.
For more information contact Adrienne Baker in our Family/Divorce department via email or phone on 01254 580000. Alternatively send any question through to Forbes Solicitors via our online Contact Form.