Our last post on divorce myths looked at prenuptial agreements and whether or not they can be broken. This post is going to look at fault in divorce and how this effects division of assets if at all. As was mentioned previously, divorce can be one of the most traumatic experiences you ever have to experience. It is essential to enter into divorce proceedings with eyes wide open, fully aware of what to expect and how it will affect you financially as well as emotionally.
Who files for divorce?
There is a myth that the person who doesn’t file, the respondent, pays the divorce fees of £550. The reality is that in most cases it is the petitioner, the person who files, that ends up paying the Court fee.
If the divorce is fault based i.e. one party commits adultery and the innocent spouse files then the petitioner can request the respondent to pay their costs as they were at fault. There can also be a mutual agreement of sharing costs if the reason is a 2 year separation case.
If there is no agreement over who should pay the costs then there are will be a costs hearing once the decree nisi has been issued and arguments can be put forward as to who should pay the fees.
There is also something called a consent order which you obtain if you need a legally binding financial order which costs an extra £50. It is prudent to get this even if you don’t think you have many assets to divide. If you get benefits or on low-income support then you may be eligible for a court fee remission.
Blame in divorce
At the moment there are 5 reasons (courts call these facts) given:
- Adultery – when a spouse has an affair or sexual liaison which results in loss of trust. Affairs with the same sex cannot be classed as adultery bizarrely. You also can’t use this reason if you were aware of the liaison but continued to live with your partner for 6 months or more.
- Unreasonable behaviour – if the behaviour is deemed to be unacceptable and impossible to live with such as physical violence which includes verbal abuse such as threats and constant insults. Addictive behaviour such as drink or drug taking and can include gambling addiction. Lack of financial support such as not providing any monetary support to the running of the household and refusing to contribute in other ways.
- Desertion – as you would expect, when one of the parties just leaves without some kind of agreement or any reason given for 2 years of more.
- 2 year separation – if spouses have lived apart for two years or more and have consented to this arrangement freely.
- 5 year separation – if spouses have lived apart for more than 5 years then this can be grounds for divorce even if one party does not agree to the divorce
There may be a sixth reason for divorce available in the future. A ‘No Fault Divorce’ is currently under review and will allow the dissolution of a marriage without declaring wrongdoing by either party.
Blame does not affect how monies are be shared out. Fault rarely plays a part in the division of assets however, Judges do take bad behaviour into account if it is exceptional or if it relates to financial conduct. Attempts to hide assets or money will be frowned upon and will have a detrimental effect to the guilty party because the rules are very strict rules about disclosure of assets. If a spouse committed adultery, feels guilty and wants to make amends, then this can play a part in terms of a financial settlement but it is a myth that the person to blame for the break down will be financially worse off than the victim of the adulterous behaviour.
The division of assets is down to the discretion of a Family Law judge and it is important to be represented by a solicitor who can get you a fair and reasonable settlement without dragging the proceedings through the courts at a huge cost to you both.
For an informal chat and to take the first steps into finding out about what divorce involves, please contact our family law team on FREEPHONE 0800 1979 345.
Thorneycroft specialist divorce solicitors offer expert help and advice on the legal and financial implications of a relationship breakdown. Each member of the team has the required skills to negotiate a financial settlement ensuring a positive outcome for you.
IF you live in Macclesfield, Buxton, Holmes Chapel or surrounding areas and require divorce law advice or to discuss your separation in more detail please call one of our specialist solicitors or complete our simple online enquiry form.
