InsightsInsight - Family and Divorce - POSTED: July 21 2020
Divorce in lockdown: your rights
Reports show that divorce enquiries have nearly doubled in the UK since lockdown began. This is a staggering statistic but not unexpected considering the difficult situation many of us are facing.
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According to Co-op Legal Services, 42% more people are now seeking a divorce compared to three months ago.
While undergoing divorce proceedings during ‘normal’ times can often be difficult both emotionally and mentally for the couple and children, for couples whose relationships were already under strain, three months in lockdown has only exasperated the pressure faced.
To help you navigate the difficult waters of divorce in the current situation and until things normalise, we’ve put together answers to some of the tricky questions we commonly get asked.
I want to get divorced, but my spouse doesn’t – what can I do?
These are unusual times and we would always recommend seeking early legal advice as the first step for couples having difficulties. While it is important to understand the effects of divorce on children and financial matters it is often advisable to consider legal advice alongside marriage counselling. This allows the couple to refocus and understand whether the issues now being faced have arisen as a result of COVID-19 or are indicative of problems which have been underlying for a while.
For example, one of the impacts of COVID-19 may have been an increase of economic pressure on couples and while financial difficulties may have always been there, this issue may have become amplified or brought to a head when spending an intense period of time together. We do advise that couples should explore marriage counselling if they are in any way unsure that the marriage has broken down beyond repair.
If divorce is the outcome there are a number of ways to deal with the resolution of financial matters and any issues concerning children. Both mediation and the collaborative process are specifically geared towards a transparent, open and non-antagonistic way of discussing the best way forward for the family. Brachers Family team has several trained mediation and collaboratively trained lawyers.
Can I exclude my spouse from our home when we are getting divorced?
Living arrangements post-separation can be a big concern for divorcing couples, and many people want to know if they can force the other spouse to leave their marital home. If you are married then you would both have a right to live in your home, even if it’s in your partner’s name, unless there have been issues of harm which may result in a court forcing one party to leave the house for the protection of the other.
Part of the discussions concerning the resolution of financial matters pending divorce will include consideration as to what happens with the family home. Options may include the house being sold, an order for sale but at a later stage and a transfer of the property. It should be noted that the court can order a sale of the home but will only do so if it considers this to be fair and reasonable.
Can my spouse force me to pay half the mortgage and outgoings when we are separating or divorcing?
In essence, yes but through the courts if this is not agreed by way of a maintenance pending suit order. Whether such a determination is appropriate depends on the overall situation for instance, what has been the status quo to date? What available income is there? Are there young children and does one party have less or more limited income? Depending on the situation it could be that a spouse may still need to pay part or indeed all of the mortgage even if they are not living in the house.
There is much in the news about spousal maintenance post-divorce, more usually where there are young children. This is income payable by one spouse to the other in addition to child maintenance and again whether this is appropriate very much depends on the individual situation. Spousal maintenance can be for varying numbers of time and amounts, including on a sliding scale basis or indeed for a nominal amount as a safety net where young children are involved.
Is a prenup legally binding?
More and more couples are opting to enter into a prenuptial agreement – referred to as prenup, or postnuptial agreement – referred to as a postnup. A prenup is an agreement prepared and signed in advance of the marriage with a postnup being an agreement signed post-marriage. Such agreements are prepared and signed by couples who wish to regulate the division of assets and finances should they divorce. A pre or postnup is most common where one or both parties wish to safeguard or ringfence assets which were inherited or acquired before marriage. This may include a property held in one party’s name and brought into the marriage, family heirlooms or to protect family business interests.
Prenups are legal in many European countries and states in the US, but they are not yet recognised as being legally binding under the law in England and Wales. It should be noted however that where the Law Commission guidelines are taken into account in preparing a pre or postnuptial agreement then the terms of the agreement are more usually taken into account by the courts and upheld.
Is divorce expensive?
Research shows that divorce can indeed be an expensive business but again this depends on the individual situation and ultimately the amounts of assets in dispute and whether the divorce is subject to lengthy court proceedings or dealt with through mediation, the collaborative route or through agreement reached between solicitors.
To keep costs down, Brachers offers a fixed fee package which gives clients the opportunity to cap their divorce costs to £850 plus VAT, plus the court fee of £550. An initial meeting with a specialist solicitor is also charged at £150 plus VAT for one hour. If a spouse has already issued divorce proceedings, we can advise options at a fixed fee of £350 plus VAT.
As far as financial costs upon divorce is concerned and to keep legal costs down, individuals can again seek to settle out of court through the many options of dispute resolution being the non-court route.
The economic impact of lockdown is still unknown and couples who are in the midst of their divorce are now liaising with their lawyers to ascertain the extent which COVID-19 has affected the valuation of their assets and to ensure that any agreement as to the division of assets is fair. While there has been an initial spate of court hearings being adjourned, the length of the UK’s lockdown has resulted in the family legal system having to adapt with hearings now taking place remotely and through digital means.
We are getting on despite being separated – I worry divorce will jeopardise that
While every couple is different it should be noted that rights accrued on marriage continue, even after separation and even if the parties have between themselves reached a quasi-settlement. A separated spouse of many years may therefore still be entitled to make a financial claim on assets, lottery winnings, inherited assets or income accrued post separation on the basis that the parties are still married, and on the basis of need.
Should a couple actively choose not to divorce, and despite agreement that the marriage has irretrievably broken down they can decide to enter into a separation agreement. The cost of this may be similar to getting a divorce and it should be noted that a separation agreement may in turn not be upheld by the court as only the court can grant a final order.
Do I have to force my children to see their other parent if they don’t want to?
This is a tricky and emotive situation and if you are having to consider this, then you’re not alone. Thankfully, the UK government clarified its position on parental visitation early in the pandemic after an initial uncertain period.
A child’s welfare is of paramount importance and will be of primary consideration by the court where there are disputes as to when a child should see their parent. Where there is a court order in place, both parents must follow the terms of the arrangements. In a situation where a child is worried about seeing a parent, then it’s important to ask the child to clarify the reason for being worried before you think about stopping contact. Both parents should work together to help the child feel safe and happy in their care and encourage continued contact, as long as it does not place them at harm.
It’s common for children to feel unsettled during this time and there’s a wealth of digital resources to help explain what both the virus and the restrictions mean in a way they will understand. Children’s charity, NSPCC has guidance on how to help young people during this period.
We’re here for you
Brachers Family team has been available to speak to clients all through lockdown and can carry out meetings by telephone or virtually through different digital platforms. If you or a loved one is considering divorce, we would urge you to contact a member of our Family team or use our online tool to receive tailored information on the issues you need to consider.
About the author
Mei-Ling is Branch President of the NSPCC and an advocate for keeping children safe. She said: “The pandemic has brought about a set of very surreal circumstances that no-one could have predicted, especially for the most vulnerable in society. In more usual times, children and young people regularly see neighbours, grandparents and teachers. But with children spending more time at home, there are fewer opportunities for adults to spot the signs of problems with a child. Whether this be that they are suffering mentally, or from domestic abuse, neglect, physical abuse, emotional abuse or sexual abuse, it’s important that we stay vigilant and report anything out of the ordinary.”
This content is correct at time of publication
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