Divorce - All you need to know

The enactment of The Divorce, Dissolution and Separation Act 2020 (‘DDSA 2020’) in April 2022 signalled the end of the requirement for grounds for divorce. Those now wishing for divorce still need to meet the requirements for jurisdiction and the validity of the marriage. The absence of blame in the divorce process saves time, and money and more importantly eliminates at least some of the acrimony from the proceedings. This has had the effect of removing some of the toxicity when entering into financial negotiations.

Divorce is an important life-changing event and most people have no prior experience of such a scenario. Giambrone & Partners LLP’s highly regarded divorce and family lawyers have guided and advised many clients, both in England & Wales and jurisdictions overseas, through their divorce.

Daniel Theron, a partner, commented “couples embarking on divorce will still need the services of a family lawyer to ensure the many hurdles they will meet are navigated correctly with no glaring errors or unnoticed loopholes in place ready to cause problems in the future. Daniel further commented “there are many factors that can arise in divorce and financial order applications that can have a significant impact in the future and are not necessarily foreseeable or obvious to the parties. If the parties are able to come to mutually agreeable arrangements they may not consider that things can change over time, particularly if one party remarries and then undergoes a second divorce. A sealed Consent Order will make your agreement legally binding and if there is a breakdown of the arrangement a Court can enforce the terms. It is always advisable to make any settlement agreement between the parties into an order of the Court.”

Divorce

There are a number of issues that your lawyer will ensure are managed correctly and prevent an adverse impact on the divorce proceedings. Reviewing the legally valid documents to be presented to the Court, your lawyer will make absolutely sure that all the documents required are present and valid. Failure to produce the correct documents to the Court will considerably add to the costs and delay the divorce, which can have knock-on impacts to the financial distribution and implementation of any financial orders.

Similarly, your lawyer will ensure that all deadlines are complied with. Failure to meet deadlines can result in delays in the proceedings, additional expenses, or even the possibility of disadvantages in the outcome of the case. Since the enactment of the DDSA 2020, there have been changes to the waiting periods to make applications at various stages which need to be carefully considered. Once your lawyer has established that all documents for your application are in order, the divorce application can be issued.

Following the DDSA 2020, Decree Nisi has been replaced by a Conditional Order which is granted after a period of reflection of 20 weeks from the date of the issue of the proceedings. This allows the parties a reasonable length of time to consider the consequences of embarking on divorce. The Court will consider the full application before granting an application for Conditional Order, therefore, given the duration of time, it is imperative that the application is completed correctly and the valid documentation is presented.

Once the Conditional Order is granted it is followed by a Final Order, previously referred to as the Decree Absolute. The Final Order can be applied for no less than six weeks and one day after the Conditional Order. Once the Final Order is granted, the marriage is then at an end. The timing of an application for Final Order can be dependent on any ongoing linked proceedings like financial order applications, so it is important to resolve the financial aspects first before applying for the Final Order. It is advisable to seek advice in about this as it is dependent on the individual circumstances.

There are very limited circumstances where a divorce itself can be challenged, such as questions as to the validity of the marriage. For example, if:

• The marriage was illegal and invalid. It must be ensured that the marriage service was not conducted legally, if the marriage was conducted in another jurisdiction it is most important to ensure that there is clear evidence that there was no breach of procedure or any other possibility that could jeopardise your application for divorce.
• The parties to the marriage are under the legal age for marriage.
• One of the parties does not have the capacity to consent to marriage.
• One of the parties was forced into marriage.
• The health of one party prevents the consummation of the marriage.
• The parties are close relatives.
• Bigamy.

Financial Arrangements

The couple must decide how they would like the matrimonial assets to be divided and whether spousal maintenance or any lump sum is to be paid by one party to the other. Couples are strongly advised to come to a mutual agreement with regard to the division of their finances if at all possible. The assets that can be included clearly depend on the circumstances of the divorcing couple, below is a list of the typical assets that are generally under consideration:

• The matrimonial home;
• Matrimonial assets - acquired by the couple during the course of thei marriage;
• Non-matrimonial assets – acquired by either party prior to the marriage. How such assets are considered depends on a number of factors, such as the length of the marriage and the needs of the parties that should be met and any children of the marriage;
• Inherited assets – depending on the circumstances of the divorce, when the assets were inherited, how the spouses used the assets and the needs of the spouses and any minor children of the marriage will depend on how inherited assets are considered by the Court. Therefore, it is important to get legal advice on the circumstances from the outset.
• Needs of the parties – the needs of both spouses and the minor children of the marriage, including housing needs and income needs.
• Financial assets such as pensions, ISAs, savings and investments.

The matrimonial home is generally the largest and most important asset for most couples and if there are minor children of the marriage, the Court may permit the ‘live with parent’ and the children to remain in the property until the children reach the age of 16 years or have completed their education. Alternatively, the parent who the children live with primarily will require a property large enough to accommodate them.

All the financial negotiations must be completed, settled and a Consent Order should be in place before the application for a Final Order of divorce is made.

Mediation

Mediation is the another way to arrive at a satisfactory agreement between divorcing spouses if they cannot arrive at an unassisted arrangement between themselves. The alternative is to revert to the Court which is rarely a better option than mediation as it generally will cost more and can be a long drawn out exercise. In Court, the final decision is made by a Judge and taken out of the hands of the couple whereas mediation provides an opportunity for the spouses to reach a settlement which can work for them both. The vast majority of divorcing couples will not have previously experienced divorce proceedings and may not be aware of what the Courts consider to be a fair arrangement.

An expert family lawyer can manage expectations and provide legal guidance to assist you in obtaining a fair settlement which is in your interests, whilst managing your expectations.

Mediation is conducted in private and it is advisable that each spouse is advised independently by an experienced lawyer as to what will be considered reasonable and what is in their best interests under the circumstances. The point of view of each party can be examined. Hybrid mediation offers the opportunity for both parties to attend with an independent mediator and their own legal representative to guide them through the process. Giambrone & Partners family lawyers have vast experience in conducting mediation between the parties to reach a financial agreement that both parties are happy with.

Once an agreement is reached by the spouses at mediation, a Memorandum of Understanding should then be drafted. This will form the basis of the Consent Order, which is then sent to a Judge for approval together with the relevant Consent Order documentation. Once an amicable arrangement has been reached and a Consent Order agreed, it is unlikely to be amended by the Court unless the Judge believes the arrangement is unfair to one party.

Financial Dispute Resolution

There are various ways that a couple can arrive at a sound financial settlement. If there is no agreement, the parties may need to consider issuing financial remedy proceedings. Once proceedings have been issued, the Court will list a First Appointment Hearing to make directions in the matter before then listing a Financial Dispute Resolution (‘FDR’) hearing, which offers the best chance within proceedings of swiftly arriving at a solution. 

Each party will have to make full financial disclosure about their assets and their financial position and provide supporting evidence. At a FDR, the Judge’s role is not to make a decision but to facilitate the parties to come to an agreement. The Judge will give an indication as to the likely result that they may come to if they actually were making a decision at a Final Hearing. The Judge’s view is a powerful indication as to the possible outcome if the matter has to be decided by the Court. It is also possible to arrange a private FDR, which will follow the same procedure but without

issuing financial proceedings, which can be an alternative or suitable next step after the parties have attempted mediation without resolution.

Both the parties are free to leave the court and discuss the issues further with their respective legal advisors should no agreement be reached at the FDR. 

If no agreement can be reached following FDR, the Judge will make directions and the matter will be decided at a Final Hearing, subject to the Judge not requiring any interim preliminary hearings depending on the circumstances. A different Judge will then make a decision which is binding at the Final Hearing.

Child arrangements

If there are minor children of the marriage, arrangements will have to made for their care, where they will live, education and for their financial maintenance. Although this will form separate proceedings, they often coincide with the breakdown of the marriage and it can be the most contentious aspect of divorce and can cause the greatest problems. The children’s needs should be considered over and above their parents’ expectations, their best interests should be paramount. The important things to be decided are:

• Who the child lives with – determining where children should reside is one of the most crucial aspects of divorce, although not specifically linked to the proceedings. Custody or child contact arrangements can be structured on the basis of a shared live with order where the child resides for a period of time with each parent or sole a sole live with order where the child resides with one parent and the other parent access to direct and indirect contact.
• Parenting plan – this is drawn up to detail all aspects of how the children are to be cared for and includes decisions on education, religion, heath care and activities such as sport, music lessons and membership of cadet corps etc.
• Child maintenance – this is determined by the income of each parent, where the child resides, the number of children involved and any specific needs of a child.

In the case of parents having different home countries the question of relocating abroad may arise. This raises the questions of consent and the visitation rights for the non-custodial parent. Specific legal advice should be sought regarding relocation from the outset to avoid adverse legal proceedings such as Prohibited Steps Order applications or Hague Convention Child Abduction proceedings being issued by the other parent.

Consent Orders

A Consent Order sets out the financial agreement made between the parties and seals the agreement which is then legally binding and crucially prevents either party from making a financial claim in the future unless there are certain exceptional circumstances.

Informal agreements arrived at between the parties can easily breakdown and the terms of an informal agreement cannot be enforced. A Consent Order provides some certainty that the agreed terms should be maintained, although this is not a guarantee.

A Consent Order can be varied under limited circumstances such as:

• A failure by one party to fully disclose all their financial assets;
• An asset was incorrectly valued in error or due to fraud;
• One party was under duress or lacked the mental capacity to comprehend the terms of the Consent Order;
• One party was suffering from a mental illness;
• An unexpected event occurred such as one party suffering an accident that renders them unable to work;
• Mutual agreement by both parties;
• A judge believes the arrangement is unfair to one party.

Given the complexities, it is therefore imperative to obtain expert independent legal advice from the outset to reduce the risks in the future should there be an agreement between the parties.

Giambrone & Partners family lawyers also have specific expertise in assisting couples with cross-border divorce, financial arrangement and child-related issues including relocation abroad, parental abduction and prohibited steps orders.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation for being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you are considering or facing divorce and would like to know more please contact us at clientservices@giambronelaw.com or click here.