There is so much confusion and misunderstanding surrounding the divorce process when in fact the basic framework is very clear.
Application for a Divorce
There is only one ground for making application to the Court for a divorce and that is that the marriage has “irretrievably broken down”. This break down has to be evidenced to the court and for this we use one of five facts:
Whilst divorce is a relatively straight forward process we would always advise taking legal advice from a specialist family lawyer at the outset as it is possible to make mistakes which may have significant financial implications at a later date. We can also suggest ways in which any hostility can be overcome ie to make the process a little less painful.
Matters relating to finance and children are the key areas which need to be agreed alongside a divorce.
Once the divorce is underway it is usual for the financial issues to be considered. If early agreement can be reached then a request can be put to the court for an order by consent. If dispute arises then the court can be used to assist resolution. The Court will always look first to understand the assets, income, liabilities and pensions of the parties. The needs of the children will be the paramount consideration. After that the court will look to divide what is available fairly and in such a way as to enable both parties to move forward. The Court does not seek to penalise any party – the financial outcome will be the same no matter who has applied for the divorce nor does it matter generally which fact was relied upon.
The financial matters are often the most difficult to resolve and why legal involvement can become protracted. I would always suggest seeking early legal advice before discussing matters with a spouse. Being realistic in what is possible, is far more likely to be met with agreement than seeking something unrealistic which will only be met with hostility. At Jarvis all our initial appointments are at no charge so that we can suggest a reasonable way forward. We can also explain why, even where there is agreement, it is sensible to record that agreement in a court order.
There is no need to refer matters relating to children to the Court if both parties are in agreement as to where the children will live, and when the other parent will spend time with the children. Both parents will retain parental responsibility even after divorce so the need to make joint decisions about the children remains in place.
If, however, there is dispute as to the arrangements for the children then mediation is a good starting point. In the event of serious ongoing dispute then the court may well have to be used to decide issues. An application relating to children can be made to the court either within the divorce process or entirely independently of divorce.
At all times the court looks to be conciliatory if at all possible for the benefit of the children. Again early and realistic legal advice to understand a parents rights and responsibilities can avoid problems escalating into total conflict and impacting upon the children.
Divorce can be a very straightforward process which many get through entirely reasonably albeit with some pain and heartache. Understanding the process and what is possible and what is not, will hopefully help avoid the many pitfalls that can arise.
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