What not to do when getting a divorce!
- AuthorLucy Birch
When going through a divorce process, do not:
1. Send the divorce petition to the court without consulting your spouse/their legal adviser
Within the current system, you cannot get divorced without “pointing the finger” at your husband or wife. You also need to use a fault-based fact (either adultery or unreasonable behaviour), unless you have been separated for a period of 2 years and your spouse consents to the divorce. Many couples are therefore faced with relying on their spouse’s unreasonable behaviour. The drafting of which is very important as this could potentially have a knock on effect on any negotiations regarding financial matters and any arrangements for children.
In these circumstances, it is good practice to send the petition to your spouse or their legal adviser first for their consideration before sending this to the court for issuing. It may be that there is something specific that they would rather not be included and you can seek to agree the petition before it is sent to the court.
2. Name the person your spouse committed adultery with in the divorce petition
Clients often want to name the person that their spouse has committed adultery with. It is, of course, understandable when emotions are running high why you want to do this. However, practically, this will only increase costs.
Anyone you name will be added as a party to the proceedings as a co-respondent. They will be served with the divorce papers and you are reliant on them complying with the court’s procedures in order to progress the divorce. It is not advisable and does not happen very often in practice.
3. Discuss the details of your case with your children
I see many clients who inform me that their spouse has discussed the details of the divorce proceedings with their children. Of course, the children have to be informed of the relationship breakdown in a sensitive, appropriate way. Discussing specific details and denigrating the other parent in front of the children is not appropriate.
The other issue I regularly encounter is parents contacting a child directly on their mobile phone to arrange contact with them. This is, of course, very problematic and can often result in a child feeling caught in the middle of their parents at an already very difficult time.
It is always advisable to shield your children from any discussions regarding the divorce and certainly not to consciously involve them in any way. It may become necessary to limit the time that your child spends on their mobile phone if your spouse continues to contact them about contact arrangements.
4. Introduce your children to a new partner too quickly
The introduction of a new partner to your children is a big step following separation. Children process things at different rates and this must be dealt with sensitively. Unfortunately, I see many people rushing into this and it can have a knock on effect on this new relationship moving forward.
It is always advisable for both parents to be involved in the introduction to a new partner and to keep the other parent up to date. Following a separation, parties still have to co-parent their children and therefore the more amicable the relationship can remain the better for the children.
5. Deal with the divorce but leave the finances
I sometimes see clients who have legally divorced and have not dealt with financial matters. Despite legally divorcing and obtaining your Decree Absolute, your financial claims against each other for income, capital and pensions remain open. It is imperative that you obtain a financial order which dismisses these claims. These claims are commonly referred to as a “clean break” order.
6. Take an aggressive stance and ignore alternative dispute resolution options
I occasionally see clients who want to take an aggressive stance, however often this does not help matters. Whilst I understand that clients want to deal with matters robustly, going in all guns blazing can often have the opposite of the desired effect. Aggressive correspondence can make relations between the parties worse and therefore more difficult to reach an agreement. This, in turn, increases legal costs and adds to the stress of the process at an already very stressful time.
It is worth noting that attendance at a MIAM (Mediation Information and Assessment Meeting) is a prerequisite to any Court application in relation to children matters and financial matters. Therefore it is worth exploring this route. In the event that it becomes clear after the first session that you are polar opposites in your positions, then you will still have the required form in order to start your court application.
7. Take legal advice from friends/family
Friends are a great support in difficult times if your marriage has broken down, and often will share their own experiences. However, in family law in particular, each case is very fact specific and therefore no situation is the same. The outcome in a friend’s divorce could be very different to your situation. It is therefore always advisable to seek legal advice.