Divorce

With the introduction of no-fault divorce in 2022 the length of time the formal process of divorce takes rose slightly to around 7-8 months on average. That’s because under the no-fault divorce procedure there are mandatory waiting times. Once you make a divorce application you must wait for 20 weeks (a ‘reflection period’) before a court will make a conditional divorce order (this used to be known as a decree nisi). Only after a further six weeks can the order be made final.

If you and your spouse have difficulties reaching agreement on the separate issues of child arrangements and family finances, the period it takes to finalise matters will increase.  Timescales will depend on the extent of the dispute, the complexity of your finance or business interests and the time it takes to reach agreement or obtain a financial order from the court.

Under the no-fault divorce regime in England and Wales you do not normally have to attend court for your divorce application to be approved.

However, if you and your estranged spouse cannot agree settlement of financial issues on divorce, and if mediation or other forms of ADR do not result in settlement, you may may have no option but to issue an application and a judge will decide matters for you.

Disagreements can arise over any children you have – where they should live for example, or how much time the ‘non-resident’ parent (the parent who does not have the children living with them for most of the time) will spend with them. In addition, you may be unable to agree the terms of any financial agreement – perhaps you ca not agree how to divide a pension, or you dispute the valuation of a specific asset or you have family wealth or a business asset that you want to protect.

In many cases parents can agree child arrangements without the need to involve the courts or other agencies. If the parents can’t agree on living arrangements for their children after divorce, they can ask the courts to decide.

There are no hard and fast rules about where children will live. Family judges base all their child arrangements decisions on what is in the best interests of the child and which arrangements will be best for the child’s emotional wellbeing. They also try hard to ensure that whatever decision they make the children will have a good relationship with each parent. The kind of factors judges might consider in reaching a decision include practical issues such as which parent can spend the most time with the child, each parent’s ability to care for the child and which parent has been the primary carer until now.

Splitting a family business on divorce does not always make commercial sense. If you and your spouse can’t agree on how to deal with business assets the courts will have to decide what to do.

First off, the court will expect you to produce an accurate valuation of the business. Usually the parties will appoint an independent expert jointly to value the business (unless the business is small, and an agreed value can be reached between the parties without the need for an expert valuation). The valuation will take into account: 

• Income generated by the business, including salaries paid to spouses and income from dividends
• Benefits accruing to the spouses from their ownership
• Capital, property and other assets
• The value of company pensions

The court then has a wide discretion on how to deal with the business or business asset. For example:

• The court may consider transferring a specified amount of shares or a particular asset to one spouse as part of their financial claim. So for example, if both husband and wife own shares in a company an order that results in one party owning the entire shareholding might be the most effective way to facilitate a clean break settlement.
• Where one party only owns shares or assets the court can order him or her to pay the other spouse a lump sum equivalent to the agreed value of the shareholding/assets instead of transferring ownership of the asset. Any valuation should assess the borrowing capabilities of the company for this purpose. Where there is insufficient capital to pay such a lump sum the court may order the shareholding spouse to adhere to a schedule of periodical payments.
• In some cases the courts may decide that the best course of action is to order a sale of the company, and it has the power to do this.

Yes, there are several situations in which family courts will allow you to seek to change an existing financial order. However it’s worth highlighting that judges in divorce cases seek to structure financial orders in a way that’s final so that the individuals involved can move on with their lives. So there’s a high bar to clear if you want to succeed in varying a financial order. Firstly you need to convince the court that your case has a real prospect of success or there is some compelling reason why you should be allowed to revisit the financial terms of your divorce. If you do get permission to challenge an existing financial order, you’ll then need to demonstrate one of the following:

• That the judge who made the order in the first place made a mistake in the way he or she applied the law to the facts of your case
• Something has occurred since the original order that changes things so much that the order has been rendered invalid
• That there was fraud, undue influence or lack of capacity in the way the original order was finalised

In contrast to the situation when a married couple divorces, cohabitees have few claims on each other’s property if they split up. The family home won’t be divided in the way it would be in the case of a divorce and individual cohabitees don’t have a right to claim maintenance, or a share in a former partner’s pension or other assets. There are legal remedies available, notably under the Law of Trusts. However, these tend to be uncertain routes to securing a share in property – the procedure is unwieldy, expensive and full of risk for the person seeking to establish the existence of a trust.

This lack of protection for unmarried couples is the reason why we would encourage cohabitees to enter a formal Living Together or Cohabitation Agreement setting out how property should be divided if things do not work out between them.

Note that children of cohabitees have the same protection under the law as children of married couples when it comes to child maintenance and living arrangements.