Article by
Professor Mark
Watson-Gandy
K.S.G
13 Old Square
Chambers
Divorce
My partner is a yawn. How does one divorce?
Divorce in England & Wales is currently granted on the basis of the irretrievable breakdown of marriage. There are currently five so-called "grounds" which can be relied upon as evidence of irretrievable breakdown…
- Adultery
- Unreasonable behaviour
- Desertion
- Two years separation with consent
- Five years separation without consent
Five years! I’m not waiting for that. So if I have a fling now, can I rely on adultery?
No. Your partner has to have committed adultery if you are going to bring the petition.
So I have to say my partner behaved unreasonably?
Unfortunately you have to spell out why they have behaved unreasonably too.
If I say that it is going to turn into a fight!
Unfortunately you are right. It sours the whole divorce process from the off. A common reaction when the respondent receives a divorce petition based on unreasonable behaviour is something along the lines of, "That was private! How could you air our secrets in public! And anyway, you've been much more unreasonable than me!”
So what happens?
This usually results in the petition being defended and a cross petition being issued. It is somewhat unfortunate because any chance of dealing with things amicably is soured from the off.
It always struck me that if the parties both got told about the way it worked, they could probably sit down agree between themselves who was going to be the “unreasonable party” and what mischief was going to be admitted to.
What issues are dealt with in a divorce?
In England there are three separate legal issues which may be involved in the divorce process:-
? The divorce itself which is simply the process by which the marriage is brought to an end and at the conclusion of which the parties are free to re-marry if they wish. This part of the proceedings concludes with the granting of decree absolute.
? Any question affecting the children of the marriage, if any.
? What is known as the "ancillary relief" proceedings which is that part of the process which resolves any financial issues between the parties to the marriage. This deals with how the assets are carved up and whether any maintenance is paid
I can’t imagine there would be much agreement over the ancillary relief bit?
No. This part is usually long, bitter and messy. They shouldn’t need to be.
However often it is often a horrible wake up call for both partners to discover that there simply aren’t enough assets or income to ensure they are able to enjoy the same lifestyle they both enjoyed before. It is always worth while talking to your partner and trying to find whether some areas of agreement can be found.
The court is bound to give me the lion’s share because my partner has been acting like a total pig.
The other side’s conduct and indeed the reasons for the divorce unlikely to make any difference to the final award
So how would the court look at dividing the assets if I and my partner had young children?
Young children almost always remain with the mother and so the overwhelming likelihood is that a court would order the matrimonial home to be transferred into the sole name of the wife. This is because the court will look at the "needs" of the parties and it will be found that the "need" of the wife and children to have a roof over their head will usually vastly outweigh the "need" of the husband to have some part of the capital tied up in their matrimonial home. This is despite the fact that the husband may have made all the financial payments
CREDIT CRUNCHED: BANKRUPTCY
I’ve been a bad girl. I blitzed my credit cards at Christmas and in the sales and I can’t pay. I’ve just had a letter threatening to make me bankrupt. If they go ahead does that mean I’ll be bankrupt forever?
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