DIY Divorce – is it a good option for you?

The new divorce petition was introduced in August 2017. The form is designed to be more user friendly for the lay man, and has taken out some of the legal jargon. It also incorporates detailed guidance on how to complete the form. This was in response to the court becoming inundated with people representing themselves and making mistakes on the divorce petition. 

The court is very particular about the way the Divorce Petition is completed. Even very minor mistakes will result in the petition being rejected.  We have represented many clients who have attempted to issue divorce proceedings alone, only to have the divorce petition returned to them by the court multiple times. The court can take up to 4 weeks to respond to each resubmission depending on their workload. It is almost impossible to get through on the telephone to speak to someone. These lengthy wait times can make something which should be relatively quick and straight forward a long drawn out process. Clients will come to us when they become so frustrated with the process they want us to handle it for them.

The rise in people completing divorce petitions themselves could also lead to more contentious divorces. The more contentious a divorce, the costlier they become. See our blog post on managing your divorce costs for more information on this.

There is only one ground for divorce and that is that the marriage has broken down irretrievably.  The party that starts divorce proceedings is known as the Petitioner and his or her spouse is called the Respondent.

To satisfy the Court that there has been an irretrievable breakdown, the Petitioner must prove one of the following five facts:

(a)   That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;

(b)   That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;

(c)    That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the grant of the divorce and the Respondent consents to a decree being granted;

(d)   That the parties of the marriage have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted; or

(e)   That the parties of the marriage have lived apart for a continuous period of at least five years immediately before the start of the divorce.

“Unreasonable behaviour” is where the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to continue to live with him or her.  The test is subjective, and the Court will consider what is unreasonable to the Petitioner.  For behaviour to be unreasonable in this context it need not consist of extensive violence, drug or alcohol or other extreme behaviour.  A combination of less obviously unreasonable behaviour can be sufficient.

In England, the majority of divorce petitions are based on unreasonable behaviour. This will be the case even if there is some perceived adultery by either party. The main reason solicitors cite unreasonable behaviour more than any other ground is that it is easier to prove and more often than not uncontested.

It is very unusual for a divorce petition to be defended, in fact it happens in only 1% of cases. The recent case of Owens and Owens, was notable simply because it was a successfully contested divorce.

In Owens, Mrs Owens cited five particulars for divorce on the grounds of unreasonable behaviour. When Mr Owens responded by completing his acknowledgement of service to confirm he would be defending the petition, Mrs Owens filed a revised petition stating 27 instances of unreasonable behaviour. This lengthy list only served to further antagonise Mr Owens, which led him to vigorously defend the petition. He saw the particulars as an attack on his character. The crux of the case came down to one key point, considering the respondent’s behaviour, can the petitioner reasonably be expected to live with the respondent? For the purpose of determining reasonableness the Judge will look at the history of the marriage, but it is not necessary to include this history in the particulars. At the first court hearing the Judge, thought Mrs Owens’s particulars were ‘scraping the barrel’ and ‘at best flimsy’. The Appeal Judge to review the case refused to find that he had made any error in law over which the appeal could be upheld. Mrs Owens was therefore refused the divorce and now has to remain locked into a loveless marriage for five years, until she could issue a petition on the grounds of five years separation.

For those representing themselves, they may see the divorce petition particulars as a place to hash out some of their bitter feelings as to why the marriage ended, and in light of the Owens judgement, we would urge you to avoid making this mistake.  Completing the particulars requires a careful balancing act between convincing the court that your allegations are serious enough that you are entitled to a divorce, and avoiding antagonising the other party. As stated in the judgement, we have in effect had divorce by mutual consent for some time. Where a petition is undefended it is often granted. This is why it is so important to balance the particulars carefully, and seek to agree them with your ex where possible.

Unreasonable behaviour is favoured over adultery, as adultery is often a disputed subject which can provoke strong reactions.  It is rarely the sole reason for the marital breakdown and invites blame and accusation.  Without a solicitor’s objective guidance, it is thought that more people will cite adultery for the grounds for divorce which will in turn led to an increase in defended contentious divorces.

At Blanchards Law we know that open communication leads to quicker, simpler and cheaper divorces. Where appropriate we will endeavour to agree the divorce petition particulars with your ex or their legal representation before filing it at court.

If you would like to discuss your options regarding issuing a divorce petition, or responding to one, please telephone us on 0845 658 6639 for a free 30-minute consultation.

Shared Custody of Children over the Holidays; Top Tips

One in three children will see their parents spilt up before they reach their sixteenth birthday. “shared custody” or “equal time parenting” is on the rise and it is important that you make sure you contact arrangements work well for both you and your children.

Co-parenting can prove more challenging around the holidays. Christmas should be a meaningful and memorable holiday for children to enjoy. However, if your family have separated it can be a tricky holiday to negotiate. Non-resident parents can often feel especially sad, lonely, jealous or angry. Children can become fearful of upsetting their parents over the holiday; they don’t want to be seen as picking sides, or having had a better time with the other parent.

If you are newly separated or divorced the first few Christmases can be difficult. It is an emotional time, and if your Christmas is set to look quite different it can be painfully sad and bring up old feelings. As difficult as it may be for you, you will no doubt want to avoid making the time stressful for your children.

The biggest problem for children of divorced parents is feeling torn. Being stuck in the middle of a war as to who gets the pleasure of their company, is anxiety and guilt provoking for children. Here are our top tips to help to have a good shared care arrangement. These are applicable to any time of year but are particularly crucial over the Christmas holidays: –

  • Agree holiday contact arrangements in advance. This should be written into a contact order. It is usual for parents to have their children for Christmas on alternate years. This avoids children the unnecessary stress and travel of having to have two Christmases on the same day. It is not too late to get a contact order drawn up. Something in writing can help both parents feel safe and secure in their arrangements, and negate any concern you might have about the other parent not holding up their side of the arrangement.

 

  • Consider what your children want, not what you want. Christmas holidays should be about what works best for the children, not just what suits the adults.

 

  • Try to keep some channel of communication open with your ex.   Things can go wrong; traffic can make people late. Try not to get too upset over the minor details and focus on the enjoying the time you have with your children.

 

  • Show your children that you love them, and try to be your “best self” with them. Try to put yourself in their position which may help you understand why they do what they do; which may very likely be ‘acting out’ during this difficult separation period.

 

 

  • Consider family counselling, for the whole family.    This is something which is essential for a good workable shared care arrangement.  Even if you despise your ex, the process will help you understand his/her actions, even if you do not agree with them.

 

  • Don’t criticise the other parent to the child. Your child has a right to a healthy relationship with their other parent that is free from your influence.

 

  • Don’t make your child to feel like it’s their problem. It is the adult who has gone through the breakup, not the child.

 

  • Communicate with your children. Bring up conversations in a casual way instead of asking “Why?” all the time which can close off a conversation.  This will encourage your children to talk about what they are feeling, particularly if this has any bearing on the custody of children arrangements that you have made.  Then praise your children for having the courage to speak to you.

 

  • Be sensitive of the stress being placed upon your children. They have two sets of parents, two groups of siblings and two different beds.  It often means switching between different rules and routines and having two homes, and yet feeling part of neither.  Children crave stability and their things become their security.  Therefore value and protect each child’s space and their belongings.

 

  • Keep a calendar in a prominent place. This way children know when they are coming and going.

 

  • Have realistic expectations of your ex. They are not going to turn into the perfect parent overnight, especially when they weren’t when you were together.

 

  • Try to establish smooth transitions between homes for the children. If possible, avoid using handovers as a time to discuss issues with the other parent. This can be an emotionally charged time, and contact arrangements should remain a matter between parents.

 

  • Set the children as your main priority.

 

If you are feeling concerned about your contact arrangements, or are dealing with a difficult ex, please do not hesitate to get in touch on 0845 658 6639 for a free no obligations conversation. We can discuss your options and help you negotiate your contact arrangements, especially over the festive period.

Considering a Pre-Nuptial Agreement? Points to consider.

According to data released by Facebook, Christmas Eve is the most popular day to get engaged closely followed by Christmas Day and New Year’s Eve. This joyful time can be made to feel less romantic if you are considering whether you want a Pre-nuptial agreement.

Pre-nuptial or Pre-marriage Agreements (“prenups”) represent a difficult issue for a couple to grapple with, and are often viewed with suspicion and seen as unromantic. As the title suggests, they are only raised when you and your partner have decided to get married, and are often an additional pressure.

There may be good reasons to enter into an agreement, such as the need to provide for your partner’s children from a previous marriage, or to safeguard a family inheritance from division if your relationship was to founder. It is a good thing, as it sets out clearly the parties’ expectations on the breakdown of the marriage, which is crucial to the resolution of a dispute. This serves to protect both proposed spouses from stress later on. At Blanchards Law we want to help you keep the element of romance whilst drawing up a prenuptial agreement. To follow are our keep points to consider for Pre-nuptial Agreements:

The agreement must be fair. It would not be right for one partner to be debarred from claiming against the other, and this is something that courts in England feel is very important. This is particularly the case where circumstances have changed since the date of signing the Prenup, such as the birth of a child or one spouse becoming ill and unable to support themselves.  Judges have a free rein to decide whether or not to accept them, as there is no law saying that they should be recognised automatically, unlike many other countries worldwide.

Although the Agreements are increasingly being dealt with by the English courts, they remain largely misunderstood. There is no guarantee that such a document will be taken into account by a judge, and proper and comprehensive advice at the outset is essential. However, it should not be assumed that a prenup will not be upheld, as the judiciary appear to be moving in their favour, as long as they are reasonable.

In addition, partners should consider what should happen to their assets on their death, and take advice to bolster their prenup with a Will. Would you wish to review it? if so, in what way and after how long? Many clients have assumed that they become redundant after a period of time; this is not the case. Should it be varied in certain circumstances? If yes, what are the triggers for variation?

There are certain necessary elements in English prenuptials which need to be included, to maximise the chances of their being recognised and enforced by the courts later if necessary. This list is not comprehensive, but has been drawn from cases on prenups where judges have set out various principles:

§  It must be in writing;

§  The document must be delivered to the other partner at least 28 days before the wedding date;

§  There must be no pressure on one partner to sign the agreement;

§  Both parties must have access to independent legal advice, which means that no one lawyer can talk to both partners;

§  The party seeking to enforce the agreement must have given full and frank disclosure of their financial circumstances;

§  The agreement should specify how long it will last;

§  There may be a need for a lump sum payment to the less well-off party upon signing the agreement or during the marriage;

§  The prenup should cover events such as the birth of children, including provision for maintenance, otherwise such an omission could invalidate the whole agreement;

§  The prenup should cover what will happen if one partner inherits money or property during the marriage, and should clearly state how assets should be dealt with in as many circumstances as possible; and

§  Who pays for the costs.

There are many aspects to think about when considering a prenup, whether you would like your fiancé(e) to sign one, or if you are the recipient of one. A prenup should always be considered where one or both partners have international elements, such as links with or property in foreign countries. At Blanchards Law we have links with good family lawyers in other jurisdictions who can advise appropriately on those. It may well be that you ought not to conclude your settlement in the United Kingdom at all, and the law of a different country ought to apply. We are able to draw upon our knowledge and experience to assist you in this decision.

At Blanchards Law, we recognise the need to deal sensitively and fairly with our clients. As a family law firm, we offer a holistic service whereby we can mediate and collaborate with our clients and other solicitors to reach a mutually acceptable agreement. We have drafted many prenups and it is extremely important to us that your relationship is unharmed. If you would like to discuss your options, please telephone us on 0 845 658 6639 for a free 30-minute consultation.

Blanchards Lawyer goes to Parliament

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Natasha Ord of Blanchards Law, a family lawyer based in Henley-on-Thames travelled to Parliament on Wednesday to meet with local MP John Howell.

Ms Ord was taking part in a major lobby of Parliament organised by family law organisation Resolution, who represent 6,500 family justice professionals that are committed to supporting couples to reach non-confrontational resolutions to family disputes.

In total, 150 family justice professionals took part in the event which saw them hold meetings with MPs to discuss the need for divorce law to be changed to allow couples to break up without having to cite blame.

Ms Ord said: “Current divorce law is sadly not fit for today’s modern society. Many couples break up because they simply fall out of love with each other, but the law fails to recognise this as a legitimate reason for separation. “Instead, couples are often forced to cite blame on their divorce forms, and from my personal experience as a family lawyer in Henley-on-Thames this often leads to argument and conflicts. This is exactly the opposite of what we should be doing, and undermines the work I and other Resolution members do to help separating couples minimise conflict. This is why I was delighted to travel to Parliament to support Resolution’s calls for no fault divorce and to meet with John Howell MP. Resolution’s call for no fault divorce is supported by, among others, the most senior family judge in the country; the deputy president of the Supreme Court; the Family Mediation Task Force, and Relate.”

John Howell MP said:

“I was pleased to meet Ms Ord today in Parliament and hear about her experience on the frontline of working with separating couples every day in Henley-on-Thames. ”I agree that divorce law should be modernised to allow couples to break up without having to attribute blame and I will be raising this issue in Parliament and with Government ministers.”

In a recent survey of family lawyers carried out by Resolution, over 90% agreed that divorce law needs to be modernised to allow for no fault divorce. As well as no fault divorce being a better option for separating couples, family lawyers also predicted that the change in legislation would see a rise in the use of mediation and lead to a reduction in the amount of court time spent dealing with children or financial issues relating to divorce.

Nigel Shepherd, National Chair of Resolution, said: “I’m delighted that Ms Ord took part in Resolution’s lobby day in Parliament. Divorce is already difficult enough, we don’t need it being made harder by the law pushing couples into conflict and arguments. It’s vital that politicians from all parties understand this and realise that it is time to act to support the many separating couples who want to divorce amicably”.

Tips for Managing your Legal Costs and Saving Money in Divorce and Children Disputes

By Punam Denley of Blanchards Law.

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk

 

I was driven to write this blog by the experience of a client recently who told me that he had spent £87,000 in legal fees with another firm trying to renegotiate the maintenance payable to his ex-wife under a consent order. It made me wonder just how much he had saved overall and whether it had been a cost-effective exercise.

So here are some tips about getting the right advice at the right price.