The Divorce Social podcast: What have you always wanted to ask a divorce lawyer?

The Debenhams Ottaway family team is sponsoring the latest series of The Divorce Social podcast, an interview podcast all about divorce hosted by comedian and author Samantha Baines.

Going through a divorce or separation can be one of the most stressful and emotional experiences in life and the legal side of things can be particularly daunting. To help anyone who might be facing a relationship breakdown, host Samantha asked her podcast listeners ‘What have you always wanted to ask a divorce lawyer?’ and senior family lawyer Natalie Lester provided the answers. There were so many great questions sent in that we couldn’t cover them all in the podcast, so we’ve written a blog to answer them all…

What do I do if the other side is refusing to engage with me? Is there a reason that divorce and the proceedings are voluntary?

There could be various reasons why your spouse/partner is refusing to engage with you. They might be struggling emotionally to come to terms with the breakdown of the marriage and at a different stage in their emotional response. They may be unreasonable in what they want to achieve or trying to hide something.

The first approach is to engage the other party, as working through the issues amicably, constructively and voluntarily is likely to be the most cost-effective, least stressful approach. It is always better for separating couples to settle their own financial issues, rather than have a court order imposed on them. Most cases do settle. When it is not possible, an application can be made to the court to decide how the finances will be shared.

Is there anything you can do if you’re not getting divorced yet but you’re thinking about it and you know your partner is going to be difficult?

We recommend gathering all your financial information and establishing what your financial position is. It can be helpful to obtain an estate agent’s appraisal of your home if you own it and any other properties you own. Find out how much is outstanding on your mortgage. You can gather your recent bank statements and documents showing the value of your investments and pensions. It would also be helpful to identify what your debts are, so look at your credit card statements etc.

Another helpful exercise is to put together a budget of your monthly outgoings, so that this can be compared with your income, to assess whether your income meets your needs, or whether you are likely to need maintenance from your spouse.

If you consult a solicitor, they will ask you what you know about your spouse or partner’s finances. Be careful though not to look for or access your spouse or partner’s financial documents without their consent, as this is not permitted.

Does it matter how long you been married when it comes to splitting the finances and what is fair?

The length of the marriage is a factor to be considered when determining how the finances should be shared. Generally, the longer the marriage, the more likely the outcome will be equal sharing of the capital, regardless of whether the assets were acquired prior to or during the marriage. There are other factors that will need to be considered, but it is fair to say that a very long marriage usually results in an equal division of the assets. In contrast, short marriages are more likely to result in equal sharing of only those assets acquired during the marriage. Be aware that the courts treat any cohabitation prior to marriage as part of the relationship. When considering the length of the marriage, the question is, when did the couple start living together, rather than when did they get married.

How are pre-marital assets dealt with when splitting the finances?

Pre-marital assets are assets acquired before the marriage or before the couple began cohabiting if they cohabited prior to marriage. The first question to ask when such assets exist is whether those assets have been mingled with the marital assets during the marriage. If one party owns an asset which was acquired before the marriage, and both parties have enjoyed that asset, or benefited from it, the court is more likely to say that it should be taken into consideration in order to achieve a reasonable and fair outcome.

On the other hand, if the pre-marital asset has been kept separate from the marital assets, and the parties have not enjoyed that asset together, or shared the benefits of that asset, then it is likely to be deemed ‘non-matrimonial’ and may be excluded from the settlement where it is possible to meet the needs of the parties and any children with the matrimonial assets available.

When is the right time to engage a lawyer?

If you are considering ending your marriage, it is best to seek advice from a family lawyer as soon as possible so that you understand how the divorce process works, how finances are split, and how arrangements for the children are going to work.

Even if you do not necessarily wish to proceed with a divorce straight away, an initial consultation will give you an initial overview of your position and the options available to you, such as relationship therapy or counselling, and mediation.

Are pre-nuptial agreements binding?

In England and Wales, pre-nuptial agreements are not automatically legal binding. However, if they have been entered into properly and have satisfied certain pre-conditions, a judge is likely to uphold the terms of the agreement. Before entering into the pre-nuptial agreement both parties need to ensure that they have received independent legal advice and have exchanged full disclosure of their finances. A pre-nuptial agreement must also be signed at least 28 days prior to the marriage.

However, where the needs of the either party or any children cannot be met by following the pre-nuptial agreement, a judge is likely to depart from its terms and make financial orders which do enable the needs of the family to be met.

How is child maintenance dealt with?

The starting point for child maintenance issues is to calculate how much the payer should be paying. To do this, you will need to use the government’s Child Maintenance Calculator. The online calculator will invite you to input details of the payer’s gross income less pension contributions, as well as details of how many nights the child/children spend with the payer a week. Using this information, the calculator will calculate the child maintenance owing on a weekly, monthly and annual basis.

Where possible, once the calculation has been calculated, parties should try to agree arrangements for payment of child maintenance.

If either party is being difficult, or the payer is refusing to pay child maintenance or regularly not paying, it is possible to seek the assistance of the Child Maintenance Service (CMS). The CMS will be able to obtain any information about the payer’s financial circumstances from HMRC and offers a collect and pay service. There are administrative charges for CMS’ services, and the CMS will be able to discuss this with you.

How are finances dealt with when a long term couple are separating, but are not married?

The position for unmarried couples is very different from that of married couples. Unfortunately, there are far less claims which unmarried couples can make.

1. Married couples can rely on the protection of spousal maintenance if there is a big difference in income and needs whereas cohabitating couples can’t.
2. Married couples have special inheritance and pension legal rights if their spouse dies, but cohabitating couples do not have that automatic entitlement to their partners assets or pension on death.
3. When married couples get divorced, generally all the assets including those owned by each of them in their sole name go into the marital pot to be divided. Cohabitants do not have any automatic right to a share of property held in their partners sole name on separation. As a result, cohabitating couples often have to rely on complicated land and trust laws to determine disputes.

Where an unmarried couple have children, it is possible for parents to make financial claims against one another for the benefit of their children. The claim is made as a parent not as an ex-partner. The Court’s priority is to ensure that provision for housing for children is available.  However, outright awards of capital to the main carer, whether for re-housing or otherwise, cannot be made by the Court like they can if you are married. The Court can only direct that money is “lent” to the main carer in order to provide a housing fund during the children’s minority.  This will be for a specified time and then the paying parent’s property or capital contribution is returned to them.

Claims can also be made for maintenance for a child if the non-resident parents earns more than £156,000 (at present) gross per annum. Also, expenses such as school fees and small capital awards could be made to buy a car or pay off debts.

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This article was co-written by family lawyer Helen Clyne and senior family lawyer, Natalie Lester.