If your marriage breaks down, reaching a financial settlement with your former partner is key to moving forwards. The settlement can affect you for years, so it’s important to get it right.
When can I get divorced?
If your marriage breaks down and you want to get divorced, you need to prove to the court that your marriage has ‘irretrievably broken down’. This is the only legal ground for divorce in England and Wales.
Grounds for divorce
The person who starts the process of getting a divorce is known as the ‘petitioner’. The other party is the ‘respondent’. The petitioner must prove that the marriage has broken down by establishing that one of the following facts has taken place:
- Unreasonable behaviour
- Desertion (for a minimum of two years)
- Two years separation (with consent)
- Five years separation (no consent required)
Unreasonable behaviour is the most common grounds for divorce, and covers a range of complaints, such as a lack of financial or emotional support. Adultery is one of the top reasons couples in England and Wales apply for a divorce. One in seven divorces is granted on the grounds of adultery (source: Office for National Statistics).
When divorce petitions are presented based on the other three grounds (desertion or separation with/without consent) then the timescale to divorce is obviously much longer.
Does adultery affect the divorce settlement?
When people file for divorce on the grounds of adultery or unreasonable behaviour, they often feel that, because they are the ‘injured party’, they should be entitled to a more favourable financial settlement. However, this is a common misconception. In nearly all cases, the reasons for the divorce are not relevant when deciding how the marital assets should be divided. The court doesn’t look to apportion blame or penalise either party, save in very unusual circumstances. The Matrimonial Causes Act 1973 sets out the criteria that are to be used when determining how the couple’s assets should be dealt with (in the absence of an agreement), and what the terms of their financial settlement should be.
So, it’s highly unlikely that the court will take adultery into account when making a decision regarding the financial aspects of the marriage. If you filed for divorce because of adultery, you should not expect to receive a more favourable settlement as a consequence.
The fact that behaviour isn’t a deciding factor when making a financial settlement should discourage spouses from contesting divorce applications on the grounds of adultery or unreasonable behaviour, therefore speeding up what can be a painful process.
Will my children be taken into account in the divorce settlement?
Yes - the needs of any children of the family are always considered paramount.
However, there are no hard-and-fast rules governing how assets should be divided, although there is a broad starting point of equality of the capital resources of the marriage. This includes things like property, pensions , savings and investments. If the divorcing couple can’t come to an agreement on the division of their financial assets and financial support, the court will decide how these should be dealt with based on factors such as their age, the length of the marriage, each party’s earning capacity, health, and what each party to the marriage needs financially going forwards.
Will my divorce settlement be affected if my partner has started a new relationship?
In many instances, the Court will make a ‘clean break’ order, which will completely end the financial arrangements between the parties. However, if the assets aren’t sufficient to permit this, then maintenance might be payable.
It is worth noting that if at the time of the negotiations either partner is cohabiting with a new partner, any claim for maintenance may involve additional considerations. It may be that the cohabitee contributes financially to the claiming spouse’s outgoings, meaning they will need less income from the other spouse. Or, alternatively, if the paying spouse has a cohabitee who contributes to their outgoings, thus freeing up income to meet maintenance claims, this can be considered when resolving the financial claims.
If you remarry without having reached a financial settlement with your former spouse, if you were the respondent in the divorce you automatically lose the right to make any financial claim against the petitioner. The petitioner, however, is likely to have preserved their claims in the petition and therefore still have the same right to make a financial claim against the respondent as before.
If you are paying maintenance to your former spouse (this doesn’t include child maintenance) and they later remarry spousal maintenance ends. However, if they cohabit with their new partner you will still need to pay maintenance, but should seek advice on a potential variation of such an arrangement as you can apply to the court to have your payments stopped or reduced. If you are receiving maintenance from your former spouse, you should normally continue to receive it after he or she remarries.
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