Ten things you should know about getting divorced
The opening scenes of the BBC One drama The Split offer a chilling suggestion of how the marriages of Britain’s wealthiest could end. Taken to meet her husband’s new lawyer, an unsuspecting Meera Syal, who plays the character of Goldie, gets the shock of her life.
“This is my new lawyer — she’s going to help me with our divorce,” explains her despicable husband Davey, played by Stephen Tompkinson. As her jaw drops, he explains: “You’ve been an exemplary wife and I can’t fault you as a mother . . . but I’m sorry, I just don’t love you any more.”
The series certainly has shock value — but the process of getting divorced can also contain some unexpected surprises (and not just the size of the lawyers’ bills).
High-profile divorce cases have dominated the front pages of British newspapers over the past few months as a stream of marriages have come to an end that have raised questions over the perceived “unfairness” of courtroom settlements.
But while there are some obvious bones of contention for divorcing couples, such as how to split the assets and who gets custody of the children, here FT Money presents 10 other lesser-known quirks that potential divorcees should be aware of.
1 Adultery doesn’t mean you will get a bigger settlement
People often assume there will be a financial impact if one partner has had an affair, or left the marriage. In fact, this will rarely make any difference to the overall division of assets. When it comes to money, by and large the court is not interested in why the marriage is ending, but rather what resources you each have available and how they are to be divided fairly.
“This means, for example, that if your spouse commits adultery or behaves unreasonably and this causes the irretrievable breakdown of the marriage, they will not stand to achieve a less favourable financial outcome,” says James Ferguson, partner and head of family law at Boodle Hatfield. “Nor can you expect a more advantageous one, simply by virtue of the fact that they were adulterous or badly behaved.”
Samantha Woodham, a barrister at 4PB, adds that for a party’s behaviour to have an impact on how finances are divided, “there is an incredibly high bar, which in the vast majority of cases will not be reached”.
2 Adultery is only grounds for divorce where it is committed with a member of the opposite sex
In English law, the court can only grant a divorce on the grounds of adultery if it is committed by your spouse with a member of the opposite sex. This means that if your wife leaves you for another woman, you will not be able to use the fact of her adultery on its own to persuade the court to give you a divorce.
“In these circumstances, you would have to petition instead for divorce based on your spouse’s ‘unreasonable behaviour’ and their infidelity with a member of the same sex could form one of five or six allegations you would have to put together to show that you cannot reasonably be expected to live with them any longer,” says Mr Ferguson. He says this is one of those archaic English laws that many believe to be discriminatory. It has yet to be challenged but lawyers predict it will be soon.
“It does, on the face of it, appear discriminatory that same-sex couples cannot cite adultery when separating and there may well be some degree of sympathy from the courts. But English law only recognises adultery between a man and a woman and any formal claims of discrimination would be dismissed. It is another example of why the divorce laws need reform,” says Vandana Chitroda, partner at Royds Withy King.
3 There is no such thing as a ‘quickie’ divorce
The press often reports on celebrities being granted a “quickie” divorce but there is, in fact, no such thing. What is being referred to is the pronouncement of a decree nisi in open court, which gives entitlement to the petitioning party to a divorce. The final divorce certificate — the decree absolute — can only be granted six weeks later. In reality, say experts, a divorce takes at least four to six months to conclude and it can be longer if the parties need to reach a financial settlement.
“A “quickie” divorce is a phrase used in the media, but means nothing in the law,” says Hannah Field, a solicitor at law firm Russell-Cooke. “Our divorce process is archaic. It takes months, as opposed to weeks, to deal with. Often the final stage — the decree absolute — is not applied for until all financial issues have been resolved. This can be several months, sometimes years, after the initial petition.”
Where the confusion lies, explains Ms Woodham, is that the initial process of changing your legal status from married to divorced does not deal with the division of the matrimonial finances, which is what couples generally find hard to agree. If couples go to court rather than settle this outside, it takes on average more than a year to resolve.
4 It is possible to have a ‘no fault’ divorce
Provided the parties have been separated for two years (and the responding party consents to the divorce) or if they have been separated for five years, it is possible to apply for a “no fault” divorce.
However, a case currently in the courts highlights the need for there to be a better system, says Ms Chitroda.
Tini Owens, 68, is seeking to divorce her 80-year-old husband Hugh after 40 years of marriage, alleging that their relationship is “loveless” and causing her “profound and enduring unhappiness”. The couple have been living apart since 2015, but the husband objects to the divorce. Under English law, if one partner objects, courts are not permitted to grant a divorce unless the couple has lived apart for five years.
Lawyers are calling for the Supreme Court to embrace “current thinking and modern social norms”, and allow Ms Owens to speed up her divorce despite her husband’s objection.
An alternative way to bring a marriage to an end is something called ‘nullity’, says Jacqueline Fitzgerald, partner at Willsons Solicitors. “The court can declare a marriage void from the start for various reasons including if it can be proven that there was no consent to marry through a lack of mental capacity,” she says. “Alternatively, the marriage can become invalid in a variety of circumstances, for example if it was not consummated, or if the wife was already pregnant by somebody else at the time of the wedding.”
5 Getting divorced in England can benefit the financially weaker party
England has a reputation around the world for awarding generous payouts to the financially weaker party in a divorce. Generally speaking, financial awards made in other jurisdictions in Europe and elsewhere in the world are much more limited.
This is because judges in England have extremely wide discretion when deciding how assets should be divided upon divorce.
Ms Chitroda says the courts have to be satisfied in the first instance that the English courts are the correct jurisdiction for the divorce. The starting point when it comes to division of assets is 50/50 and the court is able to apply an element of discretion as to the award.
“The court will not discriminate between the homemaker and breadwinner, which is why the English courts are considered to be a particularly fair jurisdiction,” she explains. Although increasingly rare, it is still possible in England and Wales for the court to order that one spouse pay maintenance to the other for the rest of their lives.
Even if you did not marry in the UK and neither of you is a UK national, you could still get a divorce there. If both you and/or your spouse are habitually resident in England or Wales, either of you could be entitled to issue divorce proceedings in those countries, regardless of where you married or what your respective nationalities are.
“The potentially wide gulf between the financial award that is likely be made in this jurisdiction compared with another jurisdiction should be a real consideration for international couples,” says Mr Ferguson. “This can lead to a situation where each spouse, seeking to protect their own interests, takes steps to issue a divorce petition in a different jurisdiction — the ‘jurisdiction race’.”
6 If an overseas divorce has left you high and dry, try again in England
If you have obtained a divorce in another country and it has left you with inadequate financial provision, you could be entitled to make an application for financial remedies in England and Wales.
To get another bite of the cherry you will need to meet all of the relevant legal criteria. This includes that the foreign divorce is recognised as valid, that you have not remarried and that you can demonstrate a sufficient connection with this country. If these are all correct then the court in England may be persuaded to use its wide discretionary powers to make an award in your favour, as if the divorce had been granted here, to alleviate the hardship you might have suffered by reason of your foreign divorce.
However, Mr Ferguson makes the point that such an award may not be of the level you would expect to have received had the divorce been obtained in this country.
7 You might not get a ‘meal ticket for life’
It is a common belief that where there has a been a lengthy marriage where the wife stayed at home to raise the children, the courts will agree to maintenance payments for life. However this is changing: English courts are increasingly placing time limits on post-divorce maintenance, assuming that the financially weaker spouse will eventually go out to work.
In 2015, the Court of Appeal agreed that Tracey Wright, the former wife of a millionaire racehorse surgeon, had no right to be supported for life at her ex-husband’s expense.
Earlier this year, the Court of Appeal ruled that Kim Waggott, who in 2012 was awarded £10m in a divorce, plus £175,000 a year maintenance for life, should have her maintenance stopped in 2021. The judges said she could get a job if she needed more money.
“The law has evolved and the ‘meal ticket for life’ — where one spouse needs an income from the other — is not as prevalent as it once was,” says Ms Field. “It is often possible to agree that maintenance should stop once the spouse has become more independent”.
She also points out that quitting your job just before you get divorced will not mean you get out of paying maintenance. “The reason why an individual is not employed will be explored. Consideration will also be given to what someone has done to find alternative employment,” says Ms Field. “In some circumstances, a notional value can be attached to earning potential. Tactical manipulation of earning capacity is usually dealt with robustly by the court.”
8 Full disclosure means full disclosure
If you end up in dispute with your soon-to-be ex over your finances and one of you applies to the court to determine the issue, each of you will be put under an obligation to give full disclosure of all of your financial and other relevant circumstances. Any changes to your financial position that occur in that time — even if the bulk of your disclosure has already been provided — must also be shared with your spouse.
The court takes the duty of disclosure extremely seriously. Where there is evidence to suggest that a party has deliberately or recklessly withheld information, at the very least the court may draw adverse inferences against them. In a more extreme case, that party could find themselves with a previous order being set aside or even criminal proceedings being brought against them.
Mr Ferguson points out the fact that an asset, such as a foreign property, may not be in your name because, for example, it is held by a family member on your behalf, but that does not mean you can get away without disclosing it.
“Likewise, if a large part of your assets are held in a family trust and therefore are legally not yours, they are not entirely free from the English court’s scrutiny. The court is capable of making an order that the relevant trust documents be disclosed and it may find that the trust should be treated as a resource for one or both spouses,” explains Mr Ferguson.
He adds that it may come as even more of a surprise that, if the trust in question is deemed by the court to be what is known as a “nuptial settlement”, an order can be made against the trustees to vary its terms for the benefit of either party or their children. The fact that the trust may have foreign trustees and be governed by foreign law is not, on its own, enough to stop the English court from making such an order.
9 You cannot always separate assets you had before you were married
If there is a surplus of assets over and above your needs as a separated family, then such “non-matrimonial” assets will be excluded. However, most couples who divorce do not have assets in excess of their needs.
“If you entered into a prenuptial agreement which specifically excluded those assets this will carry weight, depending on the circumstances in which it was entered into,” says Ms Woodham. “In such circumstances, the court will need to have recourse to all the assets to meet the needs of the couple and their children following separation, whether these are inherited, pre-marital or not.”
10 There is no formula for working out how assets are divided
The courts offer some principles so that barristers can give clients a rough idea of the likely settlement size in any particular case, taking into account the couple’s financial circumstances
However, divorce lawyers say couples often mistakenly think that there is a formula which is applied to the division of their assets. Current English law is far more discretionary and is based on what each party needs to live on and the principle of sharing assets. This means every case is different.
“The courts have discretion as to how to divide up assets, income and debts between a couple following a marriage,” says Ms Woodham. “This is vital. We are all individuals and the ways we choose to live our lives are infinitely variable. To achieve a fair result, all the competing factors and circumstances must be taken into account.”
Don’t leave yourself exposed online
Cyber security might not be the first thing that comes to mind when you are ending a marriage, but lawyers say divorcing couples need to take it into account. With so many online accounts now linked between spouses’s personal devices, sensitive information is often not secure.
Lucia Clark, an international family law specialist at independent law firm Morton Fraser, lists some tips for protecting yourself online:
Change your password
Many people share passwords with their spouses, and assume that their ex will not stoop to sneaking a look at their inbox. Sadly, their optimism is often misplaced. The first password to change should be your email — when you change or reset other passwords, the link is usually sent to your email account, and that is no use if your spouse still has access to this. In addition, your ex will probably know the answer to your usual security questions, so these should also be changed if possible.
Don’t be tempted to spy
Don’t try to access your ex-partner’s emails — this is a crime (even if they have previously given you their password) under the Computer Misuse Act 1990. A person guilty of an offence under this law can face up to 12 months in prison or a fine.
Are you still in sync?
Be aware of synced devices. Apple products, for example, are often synced together so you can access information from various devices, such as an iPhone, iPad or laptop. This can cause a problem when you are separated and may have appointments which you might not want your ex to see.
You might also share an Apple ID or iCloud account. Sharing these can again give your ex-partner access to emails, messages, photos, or locational data without you even knowing about it.