Separation and New Beginnings

January is traditionally a time for new beginnings.  In the New Year, many married couples, often after much careful deliberation, make a resolution to end their relationship and start afresh.

No one would suggest that the decision to end a marriage is taken lightly and both husband and wife should, before deciding how best to proceed, take independent advice from a specialist Family Lawyer.

The process of dissolving a marriage can be emotionally fraught.  Although the Decree Absolute, issued by the Court to confirm that the parties are single, makes no record of why the marriage was dissolved, it is often the case, for all concerned, that the reasons given to the Court for the breakdown of the marriage are of crucial importance.

Divorce Petitions must prove to the Court that a marriage has irretrievably broken down.  That is done by reference either to adultery, unreasonable behaviour, two years’ separation, five years’ separation or desertion.  In the case of adultery, the person accused must normally admit to the act and, in the case of a Petition based upon two years’ separation, both parties must agree to divorce on that basis.

Dealing with the financial aspects of a divorce can be considerably less straightforward.  Whilst some parties may be able to sit around their kitchen table and amicably reach agreement, for many, by way of Dispute Resolution, the involvement of a Mediator, Collaborative Lawyer or Arbitrator can be of invaluable assistance to resolve differences and help smooth the path to a lasting agreement.

Financial agreements reached directly between a divorcing couple tend to work better and last longer than those imposed upon them for the simple reason that they can be achieved by consent and focus on those aspects of the case that matter most to the parties involved.

Nonetheless, if the forms of Dispute Resolution above fail, or prove, for whatever reason, inappropriate, then both parties may chose to instruct lawyers to act for them and represent their best interests in negotiations to reach financial agreement.

Far from being a fast-track to Court, instructing a solicitor can simply help the parties to address issues of concern without the need for further conflict.  Solicitors will sometimes conduct a round-table meeting with their opposite number to address key points, sharing financial information for the benefit of all concerned.  This may include exploring mortgage borrowing capacity or analysing requirements for future pension income.

Once financial agreement has been reached, it can then be set out for consideration and, hopefully, approval by the Court in the form of a Consent Order.  Only if the parties are unable to reach agreement will it be necessary to proceed through various Hearings until a Judge makes an Order at a Final Hearing.  By that time, the parties will be unable to impose their own financial agreement on proceedings.

With regard to children, the Court tends to hold the view that parents know best.  For that reason, unless there is a problem to resolve and either party makes an application to Court, the Court will have no involvement as separating parents deal with matters concerning their children.

Typically, these might involve where a child is to live and how often they will see the person they do not live with full-time.  Holidays, birthdays and Christmas are also important points for consideration and, if need be, these can also be dealt with in forms of Dispute Resolution like Mediation and Collaborative Law, as above.

Finally, divorcing couples will usually be best served by reaching an amicable agreement that clearly sets out their future steps for the benefit of all concerned.  For more information on the issues raised in this article or to arrange a meeting, please contact Patrick Mulcare on 01295 204153 or email pmulcare@se-solicitors.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.*