New Year, new beginning?

It’s now time to go our separate ways

Is it time to make a life changing decision, are you looking for a new job, new car or to leave your marriage?

Now that the festive season has ended, you may be looking for a change in your life, maybe a new job, a new car or in some circumstances it could be to separate from your spouse. This can be a very hard decision to make and you may have been thinking about it for a long time and waiting to get through the Christmas and New Year period.

If you are in this situation, whether it is your own or your spouse’s decision, here are a few key areas for you to consider, please note this information is general and we always advise that legal advice is sought as everybody’s personal circumstances are different.

The Home

If you live in rented property and have a joint tenancy it may be possible to agree to a transfer of the tenancy from joint names to just your own with your landlord.

Always seek legal advice when changing a name on a tenancy agreement as it could have implications if you:

  1. Require social housing; or     
  2. There are rent arrears.

When a property is jointly owned decisions have to made on who will stay in the property prior to the final financial decision on the property being made. It is important to agree on who will pay the bills and for how long.

If you cannot agree who will remain or leave the property and you feel unsafe with your spouse in the home you can consider an Occupation Order to require the other party to leave for the short term (usually six months).

If the property is not in your name you still have Matrimonial Homes Rights, but again it is worth seeking legal advice - don’t leave just because you feel you have to.

The Children

Where the children live and how much time they spend with the other parent is often the hardest part of a separation.

When the Court is asked to decide on these matters their paramount consideration is for the children’s welfare and the decision may not be what is always expected. If you are in this situation (and you can agree) it is always best to decide what is best for the children and not necessarily for yourselves. If you seek legal advice early in the process of separation you can make sure that you feel confident in the decisions you make and the best possible decision for the children is reached.

Divorce

To start divorce proceedings you must have been married for at least 12 months and have to illustrate that the marriage has irretrievably broken down, due to one of the following:

1) Adultery;

2) Unreasonable Behaviour;

3) Desertion;

4) Two years separation with Consent; or

5) Five years separation.

Divorce applications can be a difficult process and instructing a solicitor will give you the peace of mind that the process will be completed professionally. Even if you are thinking of applying for a divorce yourself it is often sensible to seek some initial legal advice so you know where you stand before you go ahead.

If the divorce is undefended (and you are not arguing about finances) there is no need to attend Court and the process as a whole takes approximately 4-6 months.

Once the application has gone through you will receive two Decrees, firstly the Decree Nisi and then the Decree Absolute. Please note it is not until you have your Decree Absolute that you are legally divorced.

Finances

It is commonly believed that when you receive the Decree Absolute all other aspects of the divorce have been resolved; which includes the finances. However unless you have dealt with the finances at the same time as the divorce the financial issues will normally remain untouched.

Matrimonial finances can be particularly complicated and depending on how much there is (cash, assets, pensions etc.) will depend on the settlement reached. There are often two considerations when thinking about your finances:

  • Firstly there is the interim position, e.g. who will live where, who will pay the mortgage and how will you live; and
  • Secondly there is the long term position e.g. will the house be sold and what and will happen to any pensions.

When children are involved the Child Maintenance Service has a calculator to work out the payments that need to be made. Payments can be arranged either between yourselves or via the agency. Even if you do agree on the finances it is important that all elements have been dealt with and a Consent Order needs to be prepared to ensure your agreement is legally binding.

The next steps…

The first question is where to start? All solicitors should advise you that where feasible try and agree on as much as possible. This of course is not always achievable as sometimes it can be a struggle during a separation for the two parties to communicate. If this is the case Mediation can offer a solution as dialogue is kept calm and productive through the help of a trained independent person (The Mediator) leading to a better outcome in the proceedings.

If you have recently separated or are thinking about separation it is always best to seek legal advice. Having the proper legal advice will assist you in being confident with the options available to you and also the options if an agreement cannot be reached.

At Hunt & Coombs our expert Family team will guide and hold your hand through separation and divorce so that you have the best options available to you.

For further help and advice or to have a confidential talk with one of our lawyers please contact the Family team on 01733 758019 or email info@hcsolictors.co.uk

Author

Louise Ballantyne, Senior Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.