Debunking Family Law Myths – Part II

Imagine you are married with children under 18 and you and your spouse come to the sad conclusion that you no longer wish to be married.  You agree on how to deal with finances and how the children are to split their time between you.  Surely all you need to do is file a “no-fault” divorce and that’s it?  Sadly, the answer is both no and yes, and (surprise, surprise) the yes is caveated.

To elaborate on this I will:

1. set out what an “amicable” divorce petition still needs to look like;

2. explain why it is so important to get a court order reflecting your financial agreement; and

3. confirm that you don’t need an order in relation to your children – subject to three considerations.

Step one in our consciously uncoupling couple’s bid for freedom is filing for divorce.  Practitioners have been told to expect the “no-fault” divorce imminently… for several years.  The UK Parliament passed the Divorce, Dissolution and Separation Act in June 2020 and despite several, likely Brexit and Covid related, delays it is finally expected to come into force on 6 April 2022.  The new legislation removes the concept of fault from the divorce and: (i) replaces the “five facts” (adultery; unreasonable behaviour; desertion for two years or more; separation for two years with consent; or separation for five years) with a new requirement to provide a statement of irretrievable breakdown; (ii) removes the possibility of contesting the divorce; and (iii) introduces an option for a joint application.

Unfortunately, if you wish to legally separate before April next year, and neither of you has committed adultery, then you are going to have to agree:

• which one of you gets to file the petition using the fact of unreasonable behaviour; and

• how to describe that behaviour in such a way that is anodyne enough to be acceptable to the respondent but “bad” and detailed enough to  meet the court’s requirement for unreasonable behaviour to be set out.

Even though the contents of the divorce petition has no bearing on finances, it can often take several rounds of solicitor correspondence to agree these points which, unfortunately, can involve a considerable amount of time and money.  It can also unhelpfully jeopardise otherwise amicable relations between separating spouses right at the start of proceedings.  It takes a fairly magnanimous respondent to agree to a list of their bad behaviour being spelt out in black and white in a court document (which they are probably worried their children might one day see), when the reality is that no one is to blame.

However, to satisfy the court that the marriage has irretrievably broken down under the present law it is necessary to give five or six examples of the behaviour that is complained about.  Lawyers usually try to frame these “particulars” in as neutral a manner as possible but there are examples (most notably in the well-publicised case of Owens v Owens [1] which went all the way to the Supreme Court) where the court has declined to grant a divorce because the particulars given are considered to be insufficient to demonstrate that the marriage is over.  The exercise therefore does have to be carried out properly and the grounds have to satisfy the test.

For some couples it might be worth enduring just one more April Fool’s Day together before separating to avoid this situation.

The second step for our couple is to reflect their financial agreement in a court approved order.  Parties may feel that this is unnecessary given that they have agreed everything but it is needed for several reasons, most notably:

1. Enforcement: Even if things are completely amicable with your ex when you separate, you cannot guarantee that things won’t change in the future, particularly when new partners come on the scene.  If there are elements of your agreement which are ongoing and your former spouse tries to renege on the agreement, for example spousal maintenance, an agreement to delay the sale of the matrimonial home until the children are older or some assets still haven’t been divided yet like deferred bonuses awarded during the marriage but which vest later, you want to be able to enforce your agreement and to do so, you need a court order.

2. Clean break: When parties divorce they are usually looking for total financial separation from one another, as far as possible given the resources available.  If you don’t have a court order, you are never safe from the risk of the ghost of marriage past reappearing and making a financial claim against you.  There is no cut-off point for such an application.  One of the most famous cases on this issue is Wyatt v Vince [2].   The parties obtained a divorce but otherwise dropped hands and walked away without dealing with finances.  At the time of separation the parties were penniless new age travellers.  19 years later when the wife asked for £1.9m on a needs basis the husband was a multi-millionaire.  In this case the wife was awarded £300,000 plus costs of £325,000 with a key consideration being her contribution in bringing up the children of the family largely on her own.  Whilst the wife did not get what she asked for, the court did entertain her claim and made an order.

3. Pensions: Although you can share the majority of asset classes by agreement a party’s pension scheme will not divide a pension without a court order.  In longer marriages pensions can be a significant asset in the case.  Instead of sharing the pension it is possible to offset the value of the pension against other assets for example, one party keeps their pension in its entirety and in return the other party takes more of other assets.  However, calculating the correct amount of offset is an extremely complicated and technical task which needs to be done by a pension expert.  The cost of such a report may not be that much less than the cost of a solicitor drafting a consent order reflecting your agreement, to include a division of the pension.

To ensure proper “closure” for everyone and to protect you in the event that the taps are prematurely turned off it is worth making the effort at the time of separation to formalise your agreement in a court order.

It may be surprising to hear from a solicitor but you should try to avoid involving lawyers in your child arrangements.  Section 1(5) of the Children Act 1989 contains the No Order Principle which entails that when the court is considering whether to make orders under the act with respect to a child, it must only do so if it considers that doing so would be better for the child than making no order at all.

This is intended to discourage parties making unnecessary applications for court orders and thereby encourage sensible and amicable co-parenting.  It is almost always better to agree something you can live with than to have something imposed upon you by the court that neither of you are happy with.

The court is always there as a backup in the event you become unable to reach an agreement (at least until the child is 18) but as a starting point parties should try to agree arrangements between them.

As ever, there are certain circumstances where you may wish to obtain a court order and the following are examples:

1. Welfare concerns: Where you have welfare concerns and the other parent refuses to agree to the safeguarding conditions you consider necessary to be in place when the child spends time with them.

2. Foreign travel: Where there is a risk that your spouse could unjustifiably withhold consent for foreign travel or where they intend to drop out of the child’s life and will not be around to provide consent.  It is child abduction to travel abroad with a child without the permission of the other parent.  If the child’s other parent starts to withhold consent without a good reason, for example to put pressure on you to agree to something they want or to be a general annoyance you can make an emergency application to court for permission to travel. However, there is no guarantee that there will be court time available for a hearing before you wish to travel and of course there are cost implications.  A way around this and to stop it happening again would be to obtain a child arrangement order which states that the child must live with you unless a court order says otherwise.  Once such an order is in place you can take a child abroad for up to 28 days without getting permission.

3. Testamentary Guardianship: A Testamentary Guardian (“TG”) (often a close relative like a grandparent) is appointed to have Parental Responsibility (“PR”) for a child by someone in the event of their death.  On the death of the testator, the TG will be effective if the following conditions are met:

a. The TG has been validly appointed (in a Will or in writing, dated and signed by the testator); AND

b. the child has no surviving parent with PR; OR

c. a child arrangements order or residence order is in force which names the testator as the person with whom the child was to live.

If effective the TG gains PR for the child and all the rights and responsibilities that comes with that.  It gives them a say in important decisions in the child’s life for example their education, religion and medical decisions.  If there is a surviving parent with PR and no court “lives with” order, PR will not automatically transfer to the TG.  If you consider it possible that in the event of your death your family could be cut out of decision making for your child, you may wish to consider obtaining a child arrangements order naming you as the person whom the child lives with.

In the majority of cases it is hoped that parents can agree a way forward without the intervention of the court but each family is different in some cases it is prudent or unavoidable to make formal court ordered arrangements for the sake of the child.

Article by Camellia Buckmaster, Senior Associate in the Family Department. For further information, please contact Camellia by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4397.