Divorce and separation

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      in Family Law

      No-fault divorce and financial settlements

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      The impact of no-fault divorce on the settlement of finances
      This week, the new no-fault divorce law is introduced in England and Wales. As well as transforming divorce law, these overdue changes will also be applicable to the dissolution of civil partnerships.
      It is a view held by many in the family law sector that the fault-based divorce law in England and Wales was outdated and no longer fit for purpose. Under previous law, the petitioning party was required to blame the other party for the divorce if they had not been separated for a period of two years or more, which was a common occurrence.  In many cases, this led to unnecessary animosity and upset. The move to no-fault divorce removes the need for blame, and is therefore a welcomed change.
      But what impact, if any, will no-fault divorce have on resolving the financial aspects of a parties’ marriage? Stowe Solicitor Melanie Quinn tells us more.
      Finances and divorce
      When a marriage comes to an end it is crucial that as part of the divorce process, the parties’ finances are also resolved, and that they reach a final settlement on how their assets should be divided which is transferred into a legally binding court order.
      This is vital to ensure that both parties have financial security and certainty going forwards.
      Reaching a financial settlement is necessary regardless of financial circumstances because in entering into a legally binding agreement as part of a divorce, a party is protecting their financial position not just at the time of the divorce, but also in the future.  For example, they can protect any future assets they may accrue and equally protect themselves from being responsible for any debt their ex-spouse may incur in the future.
      Issues with the old fault-based divorce law
      Previously, the most common fact relied upon for divorce was “unreasonable behaviour”.  This required the petitioning party to give examples of the other party’s behaviour, which they considered to be unreasonable.  Such allegations needed to reach a certain threshold to persuade a court that the marriage has broken down irretrievably.  Therefore, in many cases, the petitioning party had to raise unpleasant marital issues, when they would otherwise have no wish to.
      Even for the most thick-skinned respondent, it was unpleasant to read details about themselves of this nature, never mind for these allegations to be recorded in a court document.
      There was an understandable common misconception that the allegations made would have a bearing on the financial outcome of the divorce. However, the reality is that only in very extreme circumstances will a court consider a party’s behaviour when determining a financial settlement.  Therefore, the unreasonable behaviour particulars were a very unpleasant means to an end and it was difficult for parties to understand why these needed to be raised in the divorce petition, only to then be put aside in the next stage of the divorce when they came to resolve the finances.
      Furthermore, the court places a big emphasis on parties attempting to reach a financial agreement by consent, without the court becoming involved or indeed, without the court making the ultimate final decision on how the assets should be divided. Given this emphasis on the parties reaching a financial agreement amicably, it is easy to see why this was somewhat at odds with fault-based divorce law. This was arguably not conducive with the parties then reaching a mutual agreement on how their assets should be divided and understandably, if one party is upset about allegations made against them in the divorce petition they may be less inclined to take a fair and reasonable approach when negotiating the divorce finances.
      No-fault divorce law and financial agreeements
      Without the need for blame, it’s likely that the new no-fault divorce law will have a very positive impact on the financial aspects of a divorce.
      Under the new procedure parties will even be able to make a joint application, meaning from the outset couples can work together where they have reached the conclusion that their marriage has broken down irretrievably.  They will be able to take a cooperative and collaborative approach to the entire divorce process which can only be a good thing.
      Of course, there will still be cases where financial matters become contentious, regardless of the reason for the divorce.  However, in these circumstances, having a divorce process that required one party to apportion blame, arguably only made matters worse.
      The new cooling off period
      As part of the reform to the current law, a minimum cooling off period is going to be introduced. This will be a period of 20 weeks between the initial divorce application and the conditional order (previously known as decree nisi).  This is in contrast to the old process where as soon as a respondent had acknowledged the divorce petition the applicant could apply for the decree nisi.
      It is hoped that this new cooling off period will allow parties time to resolve the finances of their marriage. They will then be in a position to lodge a consent order recording the financial agreement they have reached with the court, once the conditional order is made.
      The reality is that reaching a fair financial agreement can take time, and this pause in the divorce process therefore better reflects this fact, ensuring that financial matters are not rushed through because one party has a desire to end the marriage as soon as possible.
      Of course, there will be cases where even after the conditional order is made a financial agreement has not been reached. However, it is hoped that in those circumstances, the extended time frame will allow time for some clear headway to be made in addressing financial matters.
      Reaching a conclusion
      In most cases, the reason for divorce has no bearing on financial matters.  Any increased animosity caused by the reason for divorce was therefore only likely to be a hindrance to reaching an amicable financial resolution.  The divorce law reform is therefore welcomed for the positive impact it will have on couples, allowing them to act in the best interests of both parties and therefore, in turn, any children of the marriage.
      Get in touch
      If you would like more information on finances and divorce please do get in touch with our Client Care Team using the details below or make an online enquiry More

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      in Family Law

      Child Arrangements Orders – what you need to know

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      A Child Arrangements Order is a legal court order that helps to ensure the welfare of children. They are most commonly used in cases where divorcing or separating parents have not been able to agree who their children will live with, or how they will see each parent. Here Stowe Solicitor Zoe Carter explains more.

      What is the purpose of a Child Arrangements Order?
      The purpose of a Child Arrangements Order is to legally define with whom a child is to live (previously termed residence) and with whom they should spend time (otherwise known as contact). This essentially sets out who has the responsibility for care of the child and when. Whilst Child Arrangements Orders replace ‘residence orders’ and ‘contact orders’, parents with these previous types of orders do not need to re-apply for a new order.
       
      What does a Child Arrangements Order cover?
      The Child Arrangements Order will cover who the child/children will live with and how and when they will see each parent. For example, it may say that the child/children should live with both parents on a shared care basis, or it may say they should live with one parent and spend weekends with the other. It will also likely cover arrangements for holidays including trips abroad and school holiday periods.
      A Child Arrangements Orders can also set out other types of contact and frequencies including phone or video calls, and letters and cards.

      Who can apply for a Child Arrangements Order?
      There are 2 categories of people that can apply:
      1 Those who have an automatic right to apply – this includes:
      a) Any parent regardless of whether they have Parental Responsibility or not (whether they are named on the birth certificate)
      b) A Step-parent (including those in a civil partnership);
      c) Any person with whom the child has lived for at least 3 years (this does not have to be continuous)
      d) A Local Authority foster parent
      e) A relative of a child who has lived with them for a period of at least one year preceding the application (for this purpose, a relative is deemed to be a grandparent, sister, brother, aunt or uncle)
      f) If you already have a child arrangements order in your favour, you can also apply straight away.
      2 Those required to have Leave (the courts permission) to apply. This covers anyone not automatically entitled to apply in section 1 above. Usually, this category would cover anyone in the child’s life that does not have Parental Responsibility which would typically include grandparents – unless they are considered a guardian for the child, they will need Leave of the court.
      The court will consider a number of  factors when deciding whether or not to grant leave including the nature of the application; the applicant’s relationship and connection with the child, any risk that the proposed application may disrupt the child’s life to such a degree that the child would be harmed, if a child is being looked after by a Local Authority the court will also consider their plans for the child’s future and wishes/feelings of the parents.

      When should I apply for a Child Arrangements Order?
      A Child Arrangements Order should be applied for when an agreement cannot be reached on the care of the child.
      Before an application is made it is important to try and agree arrangements with the other party.  Mediation can also assist parties in trying to reach an agreement, however if it is not possible to agree, then it will be necessary to issue an application for a Child Arrangements Order. In most cases, before an application is made to the court parties are required to attend a Mediation Information Assessment Meeting (MIAM) to establish whether the parties might be able to reach an agreement, rather than going to court.

      Is a Child Arrangements Order legally binding?
      A child arrangements order is legally binding on the parties until the child reaches 16 (or 18 in exceptional circumstances).
      If either parent breaches an order and does not comply with the terms, this amounts to contempt of court and there can be very serious consequences including fines, an order for compensation to be paid, community service and even imprisonment.

      Can a Child Arrangements Order be changed?
      Yes – an application can be made to the court to vary a Child Arrangements Order if the order is no longer fit for purpose or in the child’s best interests.
      It is important that an application is made to vary the terms of an Order rather than breaching the order. If you breach an order the other party can apply for the enforcement of the order, and you could be held to be in contempt of court. If this happens you could face serious consequences including fines, an order for compensation to be paid, community service and even imprisonment.

      How will no-fault divorce affect Child Arrangements Order?
      No-fault divorce will have no impact on any Child Arrangements Orders and will not affect how the court considers what is in the best interests of the child.
      However, the introduction of no-fault divorce removes the requirement to assign blame during the divorce process, which typically caused increased animosity and unnecessary conflict between parents, creating an unnecessary knock-on effect for children. Enabling couples to divorce without blame creates a more amicable foundation from which to move forward, meaning that separating parents can prioritise the future arrangements for their children.

      Get in touch
      If you would like more information on Child Arrangements Orders please do get in touch with our Client Care Team using the details below or make an online enquiry More

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      in Children

      A complete guide to no-fault divorce

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      As no-fault divorce draws closer we look at how this family law reform will work, what has changed, and what the benefits are.

      What is no-fault divorce?
      No-fault divorce is the name given to the divorce law reform being introduced in April 2022 in England and Wales that removes the need for blame as a basis for divorce.

      What was divorce like before no-fault divorce?
      Previously, even if both partners mutually agreed that the marriage was over, no wrongdoing had taken place, or both parties were equally ‘at fault’, there was a legal requirement to assign blame to just one party if they wished to divorce in under two years (the minimum separation period).
      Based on the five grounds for fault-based divorce, couples had to spend a minimum of two years separated before they could file for divorce. The alternative was to cite behaviour or adultery as their grounds for divorce to demonstrate that their marriage had irretrievably broken down, but they then had to assign blame to one party, making allegations and disclosing the full details in their divorce application.

      What were the five grounds for divorce?

      Behaviour – The most common grounds for divorce as it covered many types of ‘unreasonable behaviour’ and, while details of the behaviour were necessary, it didn’t require admission from your ex-partner.
      Adultery – which included the need for either your ex-partner to formally admit to sex with someone else , or for you to prove it had occurred. In addition, the law’s definition of adultery only referred to opposite-sex affairs, so could not be applied if your ex was in a same-sex relationship.
      Separation, two years – You have lived apart for two years, and the other party consents to the divorce.
      Separation, five years – In this case, the consent of the other party to the divorce is not required.
      Desertion – fundamentally different to separation; it referred to abandonment.

      How is no-fault divorce different?
      With no-fault divorce the only ground for divorce is that your relationship has ‘irretrievably broken down’. No other justification is needed to grant divorce.
      You are no longer required by law to apportion blame to either you or your ex, fit your reasons for separation into one of the five reasons for divorce, formally accept blame if a divorce petition has been made against you, or provide proof of wrongdoing to support your application. You will also no longer be able to contest a divorce if you are the respondent.
      In addition, under the new divorce law, if you and your partner both agree that your marriage has broken down irretrievably, you will be able to make a joint application for divorce.

      Why is no-fault divorce being introduced?
      Every relationship is unique, as are the reasons that marriages breakdown. Often the reason for the end of a marriage is the accumulative result of a combination of factors felt by both parties, rather than the deliberate actions of just one.
      To have to distil years of unhappiness into one crystallised reason, and attribute blame to just one party, is unconstructive at best and can destroy what’s left of the relationship at a time when cooperation is needed most.
      No-fault divorce paves the way for amicable collaboration, rather than conflict and stress, helping to reduce the overall mental health impact of separation and ease negotiations. It means parties can find a way to both move forward positively, and allows them to focus on the central issues, such as children, finances, and property.

      How does no fault divorce work?

      Under the new law you, or you and your spouse, can make an application for divorce on the grounds that your marriage has broken down irretrievably.
      After a minimum of 20 weeks, the applicant(s) can confirm that they wish to proceed with the divorce.
      The court can then make a Conditional Order (previously called a Decree Nisi).
      After a minimum of 6 weeks, the court can make the Final Order (previously called a Decree Absolute).

      How long will a no-fault divorce take?
      While the new divorce process can take a minimum of 26 weeks, this does not factor in the time needed for administration, processing, and negotiations.
      It was estimated that a typical uncontested fault-based divorce could take anywhere between six to eight months, and it is expected that the no-fault divorce process will take a similar amount of time.

      What are the benefits of no-fault divorce?
      Divorce is difficult enough without the need to assign blame, which ultimately only makes things more difficult.
      No-fault divorce means:

      You no longer need to navigate agreeing which one of you should be ‘blamed’
      You don’t need to air the sensitive details that led to the end of your marriage
      There’s no need to gather enough unpleasant behaviour to qualify as ‘unreasonable’
      Respondents can no longer contest the application (although there will still be some reasons why the courts ability to deal with the divorce can be challenged)
      Conflict is reduced and puts couples in a better position to move forward
      Domestic abusers cannot contest divorce, effectively trapping their spouse
      Relationships are more likely to be amicable between parents post-separation, creating a more positive home environment for children
      Couples no longer have to wait 2 or 5 years to evidence prolonged separation, allowing them to move on sooner
      As before, no divorce and dissolution applications can be made during the first year of marriage.

      Are there any disadvantages of no-fault divorce?
      The aim of no-fault divorce is to make the divorce process simpler and less harmful to relationships. However, in some cases, apportioning blame can feel just and a way to hold an ex-partner accountable for wrongdoing. For example, in cases where one partner has committed adultery, or has been abusive, the no-fault based divorce process provides a way for them to divorce without the partner at fault accepting responsibility.

      Will a no-fault divorce affect what I am entitled to?
      No. Even before no-fault divorce, it was rare for the circumstances that led to separation to have any impact on the outcome of the divorce, such as division of financial assets and property or child arrangements. This will not change under no-fault divorce.
      However, it’s likely that by avoiding the need for blame couples will be able to reach amicable and mutually favourable agreements more easily.

      How will no-fault divorce affect financial settlements?
      No. Divorce does not automatically end a couple’s financial commitments to each other. It’s vital that divorcing couples resolve their finances by reaching a financial settlement which is then transferred to a legally binding court order. No-fault divorce will not change this or impact the outcome.
      Reaching a financial settlement can take time and it’s hoped that the introduction of the 20 week ‘cooling off’ period within the no-fault divorce process will allow parties ample time to resolve the finances of their marriage before the divorce is finalised.

      How will no-fault divorce impact child arrangements?
      Parents who divorce must come to an agreement about what’s best for their children. A Child Arrangement Order covers who the child/children will live with and how and when they will see each parent.
      No-fault divorce will have no impact on any Child Arrangements Orders and will not affect how the court considers what is in the best interests of the child. With reduced acrimony and conflict, no-fault divorce paves the way for a more positive future for families with divorced parents.
      Reaching an agreement on child arrangements can take time and it’s hoped that the introduction of the 20 week ‘cooling off’ period within the no-fault divorce process will allow parties ample time to explore and resolve before the divorce is finalised.

      When does no-fault divorce become law?
      No-fault divorce will begin on Wednesday 6th April 2022. From that date, the no-fault based process will apply to all divorce applications in England and Wales.
      Find a list of no-fault divorce key dates here.

      Get in touch
      For more information on no-fault divorce please do get in touch with our Client Care Team using the details below or make an online enquiry More

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      in Children

      The best books to help children understand divorce

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      It is regularly quoted that close to 50% of marriages end in divorce, but for the families behind the statistics it is incredibly new and unsettling. For children, it can be an especially confusing and worrying time. Reading books about divorce and separation with your child is a helpful way to support them through divorce, explain what’s happening now and prepare for the future.
      By exploring the themes through the eyes of other children in age appropriate books they can better understand their circumstances and emotions, and feel reassured that they are not alone, it’s not that fault and that change can be for the better.
      I have seen the positive impact reading can have on children dealing with the divorce process. Here is a list of books that I have used when working with clients and their children:
      Books for older children (recommended 9+)
      The Suitcase Kid by Jacqueline Wilson
      When my parents split up they didn’t know what to do with me . . . My family always lived at Mulberry Cottage. Mum, Dad, me – and Radish, my Sylvanian rabbit. But now Mum lives with Bill the Baboon and his three kids. Dad lives with Carrie and her twins. And where do I live? I live out of a suitcase. One week with Mum’s new family, one week with Dad’s.
      Deals with: having two homes, blended families
      Goggle Eyes by Anne Fine
      Kitty Killin is not only a good storyteller but also the World’s Greatest Expert when it comes to mothers having new and unwanted boyfriends. Particularly when there’s a danger they might turn into new and unwanted stepfathers…
      Deals with: new partners, step-parents
      Mum, Dad Can You Hear Me? By Despina Mavridou
      Irene, is a 10-year-old girl whose parents are getting a divorce. In the midst of her confusion and helplessness, Irene turns to her diary to express her feelings and better process her parents’ divorce. With the help of her grandmother and her teddy bear she finds a way to make her parents listen to her.
      Deals with: expressing emotions
      Clean Break by Jacqueline Wilson
      Em adores her funny, glamorous dad – who cares if he’s not her real father? He’s wonderful to her, and to her little brother Maxie and sister Vita. True to form at Christmas, Dad gives them fantastic presents, including a real emerald ring for his little Princess Em.
      Unfortunately, he’s got another surprise in store – he’s leaving them. Will Dad’s well-meaning but chaotic attempts to keep seeing Em and the other children help the family come to terms with this new crisis? Or would they be better off with a clean break – just like Em’s arm?
      Deals with: rejection, absence, step-parents
      It’s not the end of the world by Judy Blume
      Karen’s parents have always argued, and lately, they’ve been getting worse. But when her father announces that they’re going to get divorced, it seems as if Karen’s whole world will fall apart. Her brother, Jeff, blames their mum. Her kid sister, Amy, asks impossible questions and is scared that everyone she loves is going to leave. Karen just wants her parents to get back together. Gradually, she learns that this isn’t going to happen – and realizes that divorce is not the end of the world.
      Deals with: family conflict and separation
      Books for younger children (recommended 3-8 yrs)
      Mum and Dad Glue by Kes Gray
      A little boy tries to find a pot of parent glue to stick his mum and dad back together. His parents have come undone and he wants to mend their marriage, stick their smiles back on and make them better. This rhyming story is brilliantly told with a powerful message that even though his parents may be broken, their love for him is not.
      Deals with: coming to terms with parents’ separation
      Where Did You Go Today? By Jenny Duke
      A little girl goes to the park with her dad and has a fantastic time climbing, swinging and sliding: the play transports her to imaginary locations, like sliding down a snowy mountain, sailing on a roundabout ship out to sea and racing on a camel in the desert while bouncing on her ride-on playground animal. Finally, it’s time for dad to take her home and say a cheerful goodbye to her and mum.
      Deals with: paternal separation
      The Family Fairies by Rosemary Lucas
      Rosemary’s primary aim was to provide the foundations for other adoptive families to help explain their own remarkable journeys… storytelling to help children understand that families come together in different ways.
      Deals with: the adoption process

      The Invisible String offers a very simple and reassuring approach to overcoming loneliness, separation, or loss with an imaginative twist that children easily understand.
      Deals with: separation anxiety, reassurance
      Two Homes by Claire Masurel
      In this award-winning picture book classic about divorce, Alex has two homes – a home where Daddy lives and a home where Mummy lives. Alex has two front doors, two bedrooms and two very different favourite chairs. He has a toothbrush at Mummy’s and a toothbrush at Daddy’s. But whether Alex is with Mummy or Daddy, one thing stays the same: Alex is loved by them both – always. This gently reassuring story focuses on what is gained rather than what is lost when parents divorce, while the sensitive illustrations, depicting two unique homes in all their small details, firmly establish Alex’s place in both of them. Two Homes will help children – and parents – embrace even the most difficult of changes with an open and optimistic heart.
      Deals with: parents’ separation, moving between two homes
      The Great Big Book of Families by Mary Hoffman
      What is a family? Once, it was said to be a father, mother, boy, girl, cat and dog living in a house with a garden. But as times have changed, families have changed too, and now there are almost as many kinds of families as colours of the rainbow – from a mum and dad or single parent to two mums or two dads, from a mixed-race family to children with different mums and dads, to families with a disabled member. This is a fresh, optimistic look through children’s eyes at today’s wide variety of family life: from homes, food, ways of celebrating, schools and holidays to getting around, jobs and housework, from extended families, languages and hobbies to pets and family trees.
      Deals with: change in family dynamics, non-traditional families

      Mum and Dad don’t live together any more. so sometimes this little girl lives with her mum and her cat. and sometimes she lives with her dad. She has two bedrooms and two sets of toys. but she takes her favourite toys with her wherever she goes.
      Deals with: parents’ separation, moving between two homes
      Books for very young children (2+)
      I’ll never let you go by Smriti Prasadam-Halls
      When you aren’t sure, you’ll feel me near,When you are scared, I will be here.When you are high, when you are low,I’ll be holding your hand and I’ll never let go.
      A tender and heartfelt picture book. With reassuring words offering a message of unconditional love, and illustrations bursting with exuberance, warmth and humour.
      Deals with: comfort and reassurance
      Living with mum and living with dad: my two homes
      Mum and Dad don’t live together any more, so sometimes this little girl lives with her mum and her cat, and sometimes she lives with her dad. She has two bedrooms and two sets of toys, but she takes her favourite toys with her wherever she goes. This simple, warm, lift-the-flap book with bold and colourful illustrations is a reassuring representation of separation for the youngest children. Melanie Walsh is sympathetically alive to the changes in routine that are familiar to many children who live with separate parents and are loved by both.
      Deals with: moving between homes, changes to routine
      The Family Book by Todd Parr
      Some families have two moms or two dads. Some families have one parent instead of two. Some families live in a house by themselves. Some families share a house with other families. All families can help each other be strong!
      The Family Book celebrates families and all the different varieties they come in. Whether they’re big or small, look alike or different, have a single parent or two, Todd Parr assures readers that every family is special in its own unique way.
      Deals with: looking at different kinds of families
      Guess how much I love you by Sam McBratney
      Sometimes, when you love someone very, very much, you want to find a way of describing how much you treasure them. But, as Little Nutbrown Hare and Big Nutbrown Hare discover, love is not always an easy thing to measure. The story of Little and Big Nutbrown Hares’ efforts to express their love for each other.
      Deals with: comfort and reassurance
      Useful links:
      The Book Trust: Best children’s books to help talk about divorce and separation
      Get in touch
      If you need support and advice on getting a divorce, please do get in touch with our Client Care Team at the details below or make an online enquiry More