The first meeting with any divorce or family lawyer will often take place at a time when emotions are running high. At Stowe Family Law the aim of any first meeting is for you to come away with a very general understanding of what steps may need to be taken to begin the process of bringing the marriage to an end, and ultimately reaching an agreement with your spouse about how the matrimonial finances are going to be dealt with. We are often asked the same questions in that first meeting so here we try to answer those common themes.
It will always be of great assistance to your lawyer for you to come to that first meeting with some notes setting out what your current circumstances are, and your understanding is of the matrimonial finances.
At that initial meeting it is vital that we have a very general understanding of what the circumstances are of both parties, as it will then enable us to advise you on how matters might move forward. Taking some time to make your notes before any meeting will also be a helpful way for you to focus on your aims and goals.
Often, most clients we see have similar concerns and questions at the first meeting, and while each case must be dealt with on the unique circumstances of that couple, these questions and answers may be a useful starting point. This Q&A is rather general, but our specialists can advise you on your specific circumstances.
1. We’ve just grown apart, no-one is to blame. What do we do?
If you have lived apart from your spouse for two years of more, then either of you can issue a divorce petition based on two years’ separation with consent, provided the other spouse agrees to such a petition being issued.
If you have not been separated for two years, either spouse does have the ability to issue a divorce petition against the other, but in those circumstances either spouse would have to allege blame, with a petition based on a spouse’s adultery or unreasonable behaviour. There is a wide spread desire amongst family lawyers for the need for “no fault divorce” but at present we must work within the current legislation.
A significant number of the divorce petitions that we assist with are based on someone’s behaviour and indeed the latest statistics available, show that the most common ground for divorce was unreasonable behaviour, with 36% of all husbands and 51% of all wives petitioning for divorce on these grounds (Office for National Statistics – Divorces in England and Wales 2016).
Even though one of the grounds for divorce is unreasonable behaviour, the family law specialists at Stowe are committed to ensuring that the allegations of behaviour are kept mild. That is not in any way an attempt to diminish what you have gone through, but to try and ensure that the divorce can proceed with as few hurdles as possible.
2. If we get divorced, how much does it cost?
It is important to understand that there will be the costs for divorcing your spouse (the procedural act of bringing the marriage to an end, the Decree Absolute) and then there will be the costs associated with trying to reach an agreement around finances and children.
Provided your divorce (the procedural act of bringing the marriage to an end) moves forward smoothly, then your costs can be kept relatively low and often couples can do this without a solicitor. If, as the Petitioner, you are alleging fault (adultery or behaviour) then it may be agreed that your spouse will be responsible for all your divorce costs, or a contribution towards costs.
If you are the Respondent in the divorce, your own costs will be very much on the low side as there is significantly less work to do for assisting a Respondent, provided you are agreeable to the petition proceeding undefended. In those circumstances, a good solicitor may only need to do between one and two hour’s work on your behalf.
On matters relating to the matrimonial finances, your costs will be dependent on how much work is required to enable an agreement to be reached. Sometimes this can be relatively straightforward and sometimes it can be more difficult. At the outset, you will be the best judge about the stance your spouse is likely to take as you know them best. Your possible costs will also reflect what process you agree will be the best for your unique circumstances. The aim is to reach an agreement or come away with an Order that confirms how the finances are to be dealt with, and there are any number of avenues which you can go down. In short you could look to attend mediation, or look to resolve matters through solicitors, or if at any stage it was felt appropriate, look to issue court proceedings. There are also other options available and we can advise on the merits of those at the same time.
At Stowe, we agree a cost estimate with you at the start of the process and you will be able to monitor the progress of your case at all times. All our specialists have an hourly rate at which any work is charged. That rate should be discussed at your initial meeting.
3. I don’t want to go to Court. Do I have to?
Ordinarily, the process of bringing the marriage to end, should be just that, a process that involves the issuing of the divorce petition by the Court (completing it with your solicitor and then sending it in to the Court); the Court then sending it to your spouse, and your spouse confirming on paper that he or she (in almost every case that we deal with) is content to allow the petition to proceed undefended.
In short, if the divorce is undefended and you and your spouse can agree on who meets the costs of the divorce, then there is no need for a physical attendance at Court by either of you.
Matters relating to the finances can be different. If an agreement cannot be reached by out of Court dispute resolution (mediation, negotiations through solicitors, arbitration, collaborative law) then yes, physical attendances at Court will be required and it is mandatory to attend any hearings unless permission is given by the Court for attendance to be excused. The issuing of what are called financial remedy proceedings does not mean you and your spouse can try to reach an agreement on the finances at the earliest date possible, with or without an element of judicial input.
4. My spouse is very secretive about their finances. How do I know whether any agreement on the finances is fair?
Once you have advice from a solicitor, irrespective of what avenue you decide to go down for dealing with the matrimonial finances, full and frank disclosure of yours and your spouse’s financial circumstances is essential. This is assisted by completing a Form E, a document that goes into detail about finances.
For any agreement reached, or a financial order made by the Court, to stand the test of time, and for it to be considered as being fair and reasonable (how can you decide if something is fair if you do not have a full understanding of the financial circumstances that your other half finds themselves in), such disclosure if pivotal.
The expectation is that someone will be honest about their financial circumstances, if only to allay any suspicions.
Once disclosure is entered, you are not compelled to accept that disclosure at face value, perhaps if something does not ring true or there are elements of the disclosure that require further investigation. In circumstances like that, you can raise questions of the other person, again with the expectation that they will respond candidly.
We have a team of forensic accountants who manage financial disclosure on behalf of clients daily. Not all firms will have this specialist area of expertise who can, even at a very early stage in any process, assist in painting a fuller picture of what may or may not be going on behind the scenes. Their assistance can be invaluable, not only in a domestic setting, but also when business structures may need further investigation. This not only helps you determine if your spouse has fully disclosed their financial situation, but also will lead you through gathering together your financial information to help reduce issues further down the line.
5. What do I do next?
If you are thinking about divorce, it is always helpful to see a specialist solicitor. While there is a plethora of information online and in books, having the process explained in a clear manner and getting information on your specific circumstances, can help to make the whole process go as smoothly as possible. Gather as much information as you can, it will help you to understand what is coming up.
If you wanted to come and speak to us in general terms, we can book you in for an options meeting. This meeting is unlikely to last much longer than 30 minutes but we will not be able to give you any specific legal advice. Sometimes though that type of general conversation is all that you may need at an early stage where no formal process has started and when you just want to have a broad understanding of what can happen moving forward. Remember that although it may not feel like it, lots of people are going through a similar situation and will have asked the same questions you are likely to, so ask.