The new ‘no-fault’ divorce – should you wait to get the ball rolling…?

You may have heard that the government’s Divorce, Dissolution and Separation Act 2020, due to come into force in April 2022, will reform the divorce process to remove the concept of fault. The new legislation means that if both parties agree to a divorce, there won’t be a requirement for one party to blame the other for the breakdown of the marriage. It is intended to reduce conflict between parties, allowing couples to focus on the more important issues, such as their children, finances, and property. This change will also apply to civil partnership dissolution.

However, there are ways of starting divorce proceedings before the new legislation comes into effect in April 2022, without it being onerous on blame, so don’t fear that because the available grounds for divorce don’t currently include the label ‘no fault’, it means that you must go in with all guns blazing to get the divorce started.

Charlotte Gower, a member of our Family Law Team in Warwick, explains “Whilst the marriage must have irretrievably broken down in order for divorce proceedings to be started, there are currently five legally recognised reasons for the breakdown:

a. A party to the marriage has committed adultery and the other finds it intolerable to continue living together
b. A party has behaved in such a way that it would be unreasonable to expect the other to continue to live with the other spouse (“unreasonable behaviour”)
c. A party has deserted the other for a continuous period of two years or more.
d. The parties have lived separately for two years or more and the other spouse agrees to the proposed divorce
e. The parties have lived separately for five years or more, in which eventuality consent is not required

It is a common misconception that the Court will always take into account the reason for divorce, or the conduct of the parties, in making a financial Order. The basis for the divorce is not normally relevant to how financial matters are resolved. “Conduct”, as it is known, will only be considered if the Court considers it would be unfair to disregard it. So, even if the Petitioner uses, for example, ‘unreasonable behaviour’ for the ground for divorce, this does not usually have a bearing on the financial side of things.

If you want to separate or you are already separated and you want to sort out your financial separation, then you do need to have the divorce proceedings started in order to have your financial separation put into a legally binding Court Order and approved by the Court to formally finalise it. If you don’t get the agreement finalised in a Court Order, then you are leaving your claims against each other open.

We can draft the financial Court Order, called a ‘Consent Order’ for you after reviewing your wants and needs and potentially negotiating with the other party. This can then be filed with Court where a Judge will review and approve, so long as they believe it to be fair. You can do all of this by agreement without actually having to step foot inside a Court itself.

There are ways that the divorce can be achieved amicably without delay, and this means that you can go ahead and get your finances sorted and finalised sooner rather than later. We would recommend getting advice from one of our experienced Family Law Solicitors, where you will be able to discuss your divorce and financial separation and getting it all laid out in a Court Order, letting us guide you through the process and making it as stress-free as possible.”

For further information, please contact Charlotte Gower either by calling the Warwick Office or by emailing charlotte.gower@wadsworthslaw.co.uk.

 

Can we finalise our divorce before the house is sold?

For the majority of people, their most significant asset is the family home. So, it is not surprising that when it comes to dealing with the financial consequences surrounding divorce, questions about what will happen to the matrimonial home are usually top of the list.

In most cases the home will be dealt with in one of two ways – either it is transferred to one spouse, and the other spouse will receive a lump sum of money or an asset such as a pension pot or holiday home in exchange, or it is sold and both spouses receive a division of the sale proceeds.

Where a property has to be sold, external factors come into play, such as the property market, the economy, a pandemic, or tax incentives such as the stamp duty holiday. These can affect how quickly a house will be sold, and raise the question of whether a divorce can be finalised before a house is sold?

Rachel McLarney a Solicitor in the family law team with Wadsworths Solicitors in Tamworth and Warwick says ‘It is commonplace for agreements to be finalised before the matrimonial home is sold, and we can advise on things that you will need to consider in this scenario.’

Occasionally an agreement may be reached between spouses, or a court order made, stipulating that there will be a delay in selling the home until a certain event has occurred. This could be, for example, when the youngest child of the family reaches the age of 18 or finishes full-time education.

These types of agreement are increasingly less common, with most people preferring a clean break. The focus in this article is not on an intended delay to the sale, but on one where an unforeseen delay or obstacle occurs to prevent selling the home straight away. This is commonly due to the house being on the market, but without a purchaser being found.

Lessons from the case of Derhalli v Derhalli

If it is intended to sell the home, it is possible for you to proceed and finalise your divorce and financial division, however the recent case of Derhalli v Derhalli [2021] shows that some additional considerations must be taken.

In this case the husband and wife had reached an agreement over their matrimonial finances. Amongst other things, the agreement stipulated that Mrs Derhalli was to receive several million pounds upon the sale of the matrimonial home in West London, which was in the sole name of Mr Derhalli. The consent order was reached in 2016 but the house was not actually sold until 2019 due to a delay caused by the Brexit vote.

During these three years, Mrs Derhalli remained in the home and her ex-husband sought to recover a rent from her to cover this period. He argued that he should be entitled to £5,000 a month rent which amounted to around £600,000. Mrs Derhalli did not agree and argued that she was entitled to remain in the home until it was sold.

The Court of Appeal examined the consent order and found that there was nothing to prevent Mrs Derhalli remaining in the former matrimonial home until it was sold.

This case provides a cautionary tale to ensure that all eventualities are considered before entering a financial settlement on divorce, especially if the home has not yet been sold. The situation would have been different if a clause had been included in the agreement stipulating his wife must pay a rent if she continued to reside in the home. Both parties would also have saved extensive legal costs and time had the agreement stated what would happen in the event of the house sale being delayed.

Considerations when selling a matrimonial home after divorce

Not only will you want to consider who will reside in the property until sale, but you should also give some thought to other questions which may arise, such as:
• Who will pay the mortgage and rates?
• Who will maintain the property and cover the cost of any repairs?
• Who can have access to the property?

You should bear in mind that there can be other difficulties to consider if the house is to be vacant until it is sold, as it will still require a level of maintenance and heat and may be harder to sell if it falls into disrepair.

In addition, if like Mrs Derhalli you are not the legal owner of your home, we can take additional steps to secure your rights. This may involve us registering your interests at the Land Registry to help prevent your spouse selling or borrowing further against the house.

How we can help

Obtaining early legal advice on your divorce and finances is always important to ensure you obtain the best outcome possible for you and your family.
We are able to advise you on what needs to be included in your agreement should you wish to finalise matters prior to the matrimonial home, or any other assets, being sold.

We can also advise you on how you can sell the matrimonial home before you finalise any financial agreement should that option best suit you. This may be your preferred option if you have a buyer lined up and the housing market is uncertain.

If you sell before a financial agreement is reached, then the proceeds of sale will usually be held by agreement between solicitors pending finalisation by way of a consent order or court direction.

For further information, please contact Rachel McLarney in our family law team on 01926 493485 or email Rachel.mclarney@wadsworthslaw.co.uk.

Wadsworths Solicitors Acquire Top Warwick-Based Law Firm

Wadsworths Solicitors are proud to announce its acquisition of Warwick-based Duncan Watts Family Lawyers. The tie-up between the two firms came into effect on 3 April 2020.

Like Wadsworths, the niche family law firm has had over 30 years of success. The addition of Duncan Watts increases the firm’s overall presence to three locations and 29 staff including Martin Croom, a partner at Duncan Watts, who now joins Wadsworths as Head of the Warwick office.

The town centre offices at 26 Market Place, Warwick will still be home to the family law specialists of Duncan Watts, with the addition of Wadsworths’ complete range of legal services across both family and business law. The office will be re-badged as ‘Wadsworths Solicitors, incorporating Duncan Watts’ later this year.

Martin Croom stated “We are excited to be joining Wadsworths and expanding our offering of legal services to the people of Warwick and surrounding areas. Our clients will benefit from the broader expertise we can now provide across a wider range of services, meaning that we can cover all their legal needs under one roof.”

John Wadsworth, commented: “We are delighted that the team at Duncan Watts are joining us at Wadsworths. Duncan Watts has an excellent reputation in the field of family law and we are thrilled that this expertise will be added to our existing service provision.”

He added “We had been looking to open a Wadsworths office in Warwick for some time, given how thriving and vibrant the town is. This tie-up with Duncan Watts allows us to establish ourselves in the area with an existing firm and client base. We look forward to building on the firm’s close links to the community and extending our charitable support activities into the Warwick area too.”

On the question of further expansion, John Wadsworth said “We will continue to look for new opportunities in Warwickshire and the West Midlands in the months and years ahead. We’re committed to acting in the best interests of our clients, so if continued expansion meets that goal, we’ll always be open to the possibility.”