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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

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A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


The Fault Divorce system

  • soulruler
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07 Sep 12 #354401 by soulruler
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Well that is the system we have at present, you need to site reasons either of unreasonable behaviour or adultery (which has to be accepted by the adulterous spouse).

However, there is a massive contradiction here as it is generally now understood that if one party wants a divorce they will get it and it is costly and pointless to defend a Petition - well I agree with that.

A point in question is the case of Rae (see Divorce Rights - Rubes found the precedent) where a wife accepted a petition but then tried to defend the Absolute - which can only be for financial reasons - Rae got his absolute on appeal as it was adjudicated that he had rights to divorce.

The point I am thinking that if you want to divorce on grounds of unreasonable behavour and do not want to take advantage of your stbx in finance then why is it necessary to site any grounds beyond one - Unreasonable behaviour.

In the case of Rae his reasons on the surface appeared petty but on closer inspection he said that being married to his wife made him long term depressed - so there was probably more to it than met the eye especially when she defended the Absolute.

I also think however, especially as Ancillary Relief has been renamed as financial remedy that if a departing spouse wants to site more grounds and they are founded on fact that they ought to be able to sight domestic violence or financial recklessness or an inappropriate relationship with another person.

I also think that either party should be able to get their absolute - not prejudicing the defendent of the petition or privileging the Petitioner necessarily always bearing in mind that an absolute should not preclude a true financial claim if the person who gets the absolute has intention of depriving their spouse of proper financial remedy in divorce.

An astoundingly brillient and important precedent here which is Imerman v Tchenquiz that no decision should be made in family proceedings that would result in another action whether Tort Equity or Law.

As a result of Mrs Rae''s refusal to allow an absolute what resulted was another action by way of appeal in Law.

  • rubytuesday
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07 Sep 12 #354402 by rubytuesday
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It was in this Telegraph article that LJ Wall claimed he could ”see no good arguments against no fault divorce, and that “ it was no longer important “to demonstrate that you were the ‘innocent’ party”.

Is it important to demonstrate that one party is “innocent”? There is certainly a moral argument to apportion blame on to the party who has, by their behaviour, acted outwith the marriage vows and what is deemed acceptable by the other spouse. (I will come to this in a bit), but is there a legal argument as well? Would it be justified to effectively punish one party for their actions which caused the breakdown of the marriage? Marriage is a contract, and I would argue that where one party in that contractual relationship has not adhered to the terms of the contract, then perhaps some form of recompense [moral or otherwise] for the other party would be justified.

Lets look at this scenario – a couple are married for 10 years, 2 children, wife gets bored, has an affair (or a string of affairs), refuses to discuss the problematic relationship, and throws a divorce petition at the husband – based on his alleged Unreasonable Behaviour (and, yes it does happen, frequently). Husband ends up having to move out, losing his home, half or more of the marital assets, and importantly, daily life with his children. The wife retains the house, a good portion of the assets, the children and her new lover. Does this seem fair to you? It certainly doesn’t to me.

Even in Scotland, where there are more “no-fault” divorces (partly due to the heavy burden of proof required for defended fault-based divorces, and partly due to the fact that all matters relating to finances and children need to be agreed first), a divorce Writ will still contain, within the Condescendence , a fairly detailed history of the breakdown of the marriage, and therefore effectively apportioning blame on one party. Ergo – a no fault divorce in Scotland isnt really no-fault as there still requires to be a valid reason for the separation to have occurred in the first place. My own Writ, based on 12 months separation contained no less than 10 citations of my now ex-husband’s behaviour leading to the breakdown of our marriage.

But is apportioning blame [or fault] on one party reasonable? Those who feel they were very much the wronged party and did not break the terms of the marriage contract would argue that, yes it is entirely reasonable to do so, and that the party at “fault” should not be rewarded financially – which often seems to be the case.

There are some who claim that we are moving forwards to a system where blame is more or less equally apportioned to both parties in a divorce, meaning that both parties have to assume the mantle of blame, even when one party is not at fault, leaving the party who feels they are innocent hugely aggrieved at the lack of accountability on the part of the party who has acted outwith the boundaries of the marriage.

The concept of no fault divorce was originally proposed as part of the Family Law Act 1996,, and in Scotland, where the law on divorce was given a huge shake-up in the 2006 Act, there were outspoken critisims that divorce was now too easy, and undermined the importance of marriage. I would agree with LJ Wall when he said that divorce is now “an administrative process” rather than a judicial one – its becoming little more than a form-filling exercise (leaving out the emotional side of divorce), and with online companies offering “quick and cheap” divorces, its becoming ever more part and parcel of the consumer lifestyle. Its a very sorry state of affairs.

By moving towards a no-fault divorce system (or one where both parties are expected to share the “blame”) we are in danger of viewing marriage and spouses as disposal commodities, to be binned at the earliest convenience when one party grows bored of the other – it would be easier to divorce than work at saving the marriage. Morally, I can’t see there ever being a no-fault divorce, and surely, there would still be a need to demonstrate how the marriage has broken down for a decree to be issued – or are we now moving to a situation where getting a divorce is as easy as applying for house insurance?

If all is fair in love and war, then there is nothing fair about divorce.

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07 Sep 12 #354409 by soulruler
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I agree with you Rubes in the main. I also think that in many many respects the Scottish approach to divorce is far more equitable than the current English one although I would say that the Law is no less competent (but just now applied as well) in the rest of the UK.

Marriage is a contract but not one of statute one of trust.

You make your vow whether you make it in civil proceedings or in a religious ceremony (and same sex couples now have the right to a civil wedding) and then you sign a civil register (not a long legal contract) to show that you are married.

We all have to get divorced in civil courts no matter what your religious orienation is or isn''t.

I found it interesting recently when I filled in for myself a divorce/annulity Petition thinking that I was being forced to stay married when in fact I peitioned (actullay very quickly as my ex was threatening me that he was petitioning me on grounds of unreasonable behaviour - he was the one having an in your face adulterous affair and threatening me knifes at the time, I got my Nisi and then I applied and got my Absolute.


If I had my time again I would have kept my petition much shorter than it was (I was legally represented at the time so just did what they told me).

I would have mentioned domestic violence on a grand scale, I would have mentioned that he was financially reckless and was having a very inappropriate relationship with my best friend and I would have mentioned that he and she were threatening me that they were going to claim my mothers assets.

I would not have done this in any vindictive way I would have done it to establish principal and then had the right to rely on my petition grounds.

It would also have acted as a warning shot not to protect proceedings as has happened in my case.

I would have been happy after getting over the initial shock of betrayal to let my ex and his new (now wife) get on with their lives. Sadly neither of them feel the same way about our three children and my mother or indeed for the courts.

I think if you can establish where a marriage has just run its course and both parties can accept that and not to take advantage of marital status and trust that is fine. I also think that people should not abuse the institution of marriage which I consider to be a marvellous institution.

I also think that if people believed they could get married and then divorced without being financially crippled or made to look like criminals then that would go some way to helping more people get married rather than just staying unmarried and living together.

I also believe that people have the right to divorce on what ever grounds they might want to take.

Imagine the situation of people who keep gettting married over and over again (John Cleese possibly in point of that). They might be getting married to flatter the other party and encourage them to stay with them, they may be getting married as they want the life of someone well off or famous. What ever the reason if one party then realises they made a mistake or only wanted marriage for personal gratification then all the same neither party should be prejudiced.

I know that some younger people get married to older ones as they fancy the lifestyle and the security but then find out the lifestyle is not what they thought and soon after want a divorce and then expect even in a short marriage to walk away with significant funds that belonged to the other party.

I do not think the system is equitable at present. I do think however, if more effort is put into making the correct decisions it would make a big difference to the way law is applied here in the UK both in and out of court.

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07 Sep 12 #354438 by Fiona
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Some of us remember the shenanigans that went on when divorce was fault based and the unsavoury, destructive and even more costly process of mutual recriminations. Even if a spouse''s case was justified it most certainly did not help anyone to have it set out in great detail.

The Government of the day had cold feet when no fault divorce was introduced so we now have the situation in England, Wales and Scotland where the law is neither one thing or another.

Good divorce law limits the effects of conflict and doesn''t encourage spouses to emphasise each other''s faults. The aim is to minimise aggression in the interests of the parties and, most importantly, their children.


Ruby wrote;

Husband ends up having to move out, losing his home, half or more of the marital assets, and importantly, daily life with his children. The wife retains the house, a good portion of the assets, the children and her new lover. Does this seem fair to you? It certainly doesn’t to me.


On the other hand it might be a wife who has to move unwillingly from her home, is left struggling financially and has her daily life with the children disrupted whilst the husband moves in with a lover and is in a better position to recover financially. She might well say the husband was a workaholic who never showed any interest in the children before, so it''s unfair he has any say about them now.

There are some who claim that we are moving forwards to a system where blame is more or less equally apportioned to both parties in a divorce, meaning that both parties have to assume the mantle of blame, even when one party is not at fault, leaving the party who feels they are innocent hugely aggrieved at the lack of accountability on the part of the party who has acted outwith the boundaries of the marriage.


Ongoing blame is destructive. I don''t think we are moving towards a system where blame is equally apportioned, rather one that recognises each party in a relationship is responsible for their choices and the consequences. I never lost sight of the fact that it was my choice to marry my ex, and my responsibility to deal with the consequences.

we are in danger of viewing marriage and spouses as disposal commodities, to be binned at the earliest convenience when one party grows bored of the other – it would be easier to divorce than work at saving the marriage.


Marriages breakdown and spouses separate before they resort to the law. Many people work very hard at their marriage before deciding to leave. Once they are so disillusioned and unhappy enough to leave a marriage the probability of making a marriage work is exceedingly low. We don''t need fault based divorce to deal with concerns about divorcing at the earliest convenience, the cooling off period could be extended.

  • .Charles
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07 Sep 12 #354453 by .Charles
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I also think however, especially as Ancillary Relief has been renamed as financial remedy that if a departing spouse wants to site more grounds and they are founded on fact that they ought to be able to sight domestic violence or financial recklessness or an inappropriate relationship with another person.


By this do you mean that you believe petitioner''s should be able to rely upon the contents of their Petition when dealing with finances? If so, they already can. This is the purpose of an answer and cross petition - where the respondent wishes to pursue their own divorce petition ahead of the petitioner''s Petition.

Where there are allegations made in the petition which might be the basis of issues of ''conduct'' in financial proceedings it is common for a respondent to agree not to defend the petition on the agreement that the grounds are not used in other proceedings e.g. grounds of domestic violence being used to deny contact in Children Act proceedings.

I''m not sure what the answer is as the marriage process is so old and archaic, it would be difficult to tack on a modern procedure to provide an end to the marriage with devaluing the process to the point of meaninglessness.

Charles

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08 Sep 12 #354557 by soulruler
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What I am saying is that I believe moving to a non fault divorce system is as unrealistic and antiproductive as constantly apportioning and going on about blame.

The whole point to me is that people should not go into marriage lightly or fail to enter marriage because of fear.

If two people guenuinely have no good grounds to divorce then I think that is very good reason to work at a marriage - in fact you do not find people who genuinely have no good grounds getting divorced - they stay together and work on their relationship and I believe that is right.

At the moment, and I agree, you have to have reasons to get divorced, they are unreasonable behaviour, adultery, or two or 5 years separation.

If the problems in the marriage are not that significant that either the Petitioner or the respondent to the Petition does not feel the need to state clearly a case and define those terms then I think that a petition that just says unreasonable behaviour is the civilised way to get divorced - especially bearing in mind that in practical terms it is pointless, costly and time consuming both in terms of money and emotion to contest a divorce petition.

I also think where the reason for getting divorce is because of abuse one way or another that it is sensible to state that without going into too many examples of the abuse (not what happened to me as my legal executive who progressed my petition wanted pages and pages of examples - what a waste of time and money and what a bore for the judge).

I insisted actually that he put it in straight away when my husband made it clear to me that he was going to divorce me on grounds of unreasonable behaviour.

My lawyer did not make it clear to me that I could put in a petition because of domestic violence and disregard the general protocol (not sure in retrospect whether he even knew about putting in petitions without agreement where DV is involved).

Still he did as I asked and the other solicitors put up a huge fuss about that siting that I had seriously wounded my ex (er - doctors report please - nonsense I scratched him one day during an argument about his affair and his threats against me).

They then totally refused to acknowledge service demanding that they would only allow the petition and acknowledge it if I agreed to pay all the divorce costs (wrong way round).

I think in the main that people should work at marriage but also agree that people should be allowed to divorce - on that basis I helped my ex to get divorced from me and live happily ever after which his "friend" who was accommodating him out of "need".

We are divorced, I paid for the Petition, Nisi and Absolute. I paid the largest portion of his legal costs (£10,000 which he spent on entertainment and then I paid his solicitors my Open Offer - for his entertainment - which his solicitors kept for litigation).

The latest thing that is happening to me and our children as a result of my ex husband and his legal teams abuse is that the house offered by my husband in his "open" offer and order by a High Court Judge to be transferred to me and transferred by a district Judge is now being repossessed by the bank (at least that is what they are attempting to do).

It goes to the heart in my opinion that you only divorce when the situation is unbearable to live with anymore - whether you are just two people who have grown apart but want to remain amicable or whether one of the parties is hideously abusive.

It is hard to see why any decent person would want to see their ex wife, their daughter and their disabled son out on the streets especially when they still own the house themselves and are not contributing at all to the mortgage, not making any contribution to their disabled sons living arrangements and perfectly and happily accommodated themselves.

Children are so often used and abused and forgotten about in divorce.

I think I am going to start a new thread entitled Children need parents - good parents whether they are the Mum or Dad or a step parent - thinking now about the thread children hit with a woodern spoon.

It is a balancing act.

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08 Sep 12 #354563 by dukey
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Its an interesting thread, fault based divorce ended around the time i was born, from what i read divorce back then required a court hearing, much like a trial and a judge would need to be convinced the marriage was over and the breakdown was caused by one spouses actions, expensive and acrimonious to say the least.

Since then the single ground for divorce is the irrevocable breakdown of the marriage, to show this happened the applicant must use one of five factors, though why they included desertion is a mystery to me, two of the five are fault based meaning limited costs can be claimed which to me seems fair.

The system is rigid and probably flawed, but it is a one size fits all system, personally the Scottish procedure seems much more sensible.

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