1. Don’t send the text
We have all been in a position where we’ve pressed ‘send’ on an emotionally driven message, that we instantly regret. The consequences of which, are typically more problematic than the issue that led to the message being sent in the first place, leading to so much hostility between two parties, that they actually move further away from being able to reach an agreed financial settlement and incur significant unnecessary legal fees in doing so.
Our advice is to communicate in a fact-driven way. If you receive heated communication, do not send a response straight away. Take some time to process whether it needs a response at all and only respond in a way that will encourage you to reach the endgame.
2. Thinking you can get more from the family assets because the marital breakdown was their spouse’s “fault”
In 2022 ‘no fault divorce’ was introduced in England and Wales. This removed the requirement to prove the irretrievable breakdown of the marriage on one of the five former facts available, which included adultery and unreasonable behaviour. Some people may be surprised that a ‘fault-based’ divorce never did alter the way the family court considered a financial settlement.
The only way a spouse’s bad behaviour really comes into a financial settlement, is where their conduct is so poor it would be inequitable to disregard it. Even then, the conduct will need to have directly impacted the family wealth. An example would be gambling away the family’s life savings, leaving the parties with limited to no, financial resources to rehouse with.
A financial settlement will always start on a presumption of sharing the assets with the focus of ensuring both parties needs are met in so far as possible by the assets of the marriage, in a fair and equitable manner.
3. Don’t spend money arguing over the small stuff
When dividing the joint contents of a family home, we often find people entrenched in disputes over unimportant items, solely out of principle. Typically, these items hold little sentimental or financial value but people feel if they back down, the other person is ‘winning’. But really, neither party is winning when they are incurring such fees going back and forth with their lawyers.
Our advice is therefore to back down when it’s sensible to do so. Consider the cost of replacing the item versus instructing your lawyer to argue over it and whether your time and money could be better spent resolving the overall financial settlement.
4. Don’t barter contact with the children and finances
Despite TV shows and media promoting the contrary, it is not appropriate to stop a child spending time with their parent until they concede on the financial settlement.
A child’s right to spend time with both parents should not be restricted by parental conflict and the court will frown upon a parent who attempts this.
This point also goes hand-in-hand with not bad-mouthing the other parent to, or in front of, the child. As tempting as it may be, children should always be protected from adult issues, awareness of which can cause a lot of upset and psychological harm.
5. Sort out your finances properly
It is often a common-misconception that ending the marriage by way of divorce also ends the financial claims against each other – but this is not correct.
Similarly, an informal arrangement between the two of you, does not end financial claims either.
The only way to end the financial claims, is to obtain a financial order from the court, that includes a Clean Break Order to sever the ongoing financial ties between you.
By taking legal advice, financial disclosure is exchanged between parties and used as part of the negotiation process to agree a financial settlement that is tailored to the needs of your family. If an agreement can be reached in respect of the financial claims that can be made, the terms of the agreement can be recorded in what is known as a Consent Order. If it is not possible to reach an agreement, then either party to the marriage can apply to the court for financial remedies order or you may wish to explore mediation to assist you in coming to an agreement that can then be converted into a consent order.
6. Don’t remarry before sorting out the finances
Following on from point 5, if either of you were to remarry without taking steps to protect your financial claims, then the one who remarried would be prevented from making almost all of those financial claims against the other. However, it does not stop the one who has not remarried, making a claim against you.
For these reasons, you should seek legal advice before remarriage and tie up your finances with your ex-spouse before you do.
7. Don’t have unrealistic expectations
This is a broad term that can apply to many areas of the divorce process.
Firstly, divorce is not a quick process and even when everything is agreed and amicable, the court process still takes time. The new ‘no-fault’ divorce factors in two cool-down periods:
• A 20-week cool down between issuing the divorce application and the application for conditional order being made, and
• A further 6-week cool-down between conditional order being made and final order being applied for.
Therefore, it’s important to note your divorce process will take a minimum of around 30 weeks and this is without consideration to how long it takes to reach a financial settlement.
This term also applies to the outcome of your financial settlement. It is never easy to split one family home into two. It is therefore often the case that both parties will need to take a drop in their standard of living to accommodate the smaller financial resources available to them.
Once this is understood and parties adjust their expectations in this regard, the sooner a more realistic approach can be taken when putting forward financial settlements that are workable within the pool of assets available for distribution.
8. Make your Will
Yes, the task that we all put off – but don’t. The sad reality is that we never know what is round the corner and we all want to make sure that when we do reach our end, the right people inherit our wealth.
If you die whilst still married and you have not made a Will, the rules of intestacy mean it would be your spouse who inherits. This may not be what you wish to happen if you are going through a separation. It is therefore imperative that, as with all big life changes, you consider making or revising your Will to reflect your most up-to-date wishes.
How we can help
If you would like advice on separation, divorce or financial settlements, please contact me on freephone 0800 011 6666 or via email at k.copsey@timms-law.com.
We also have a great Wills Team at Timms who will be happy to help, feel free to call on the above number or further details on our services can be found on our Wills, Probate & Estate Planning page.
