Thinking of divorce?
The first rule of divorce is: think about the children first!
It is the time of year when lawyers make most of their money - the January onslaught of divorce case applications. Christmas is an evocative time of year. It can be a time of joy, but it is also a time of abject misery for many people.
And with New Year many resolutions, many marriages are brought to a close. Most of those marriages have been unhappy for a long time, and the New Year seems a good time to face up to life in the future.
McKenzie Law Partners specialise in supporting separated parents in making #ChildArrangements for the children many future once a marriage has ended.
Divorce is a very emotional process, and the ones affected most are the children Overwhelmingly, we find that the two parents are so busy trading a war of words with one another that they forget to give the children the necessary consideration due to them.
We believe it is more important to first work out what is in the children many best interests than to rush to the solicitor’s office and file for a divorce petition.
However, this rarely happens.
When adults are preoccupied with their own misery and the demise of their relationships, they fail to realise the impact on the children. It is very sad.
Children are not oblivious. They can hear arguments and sense the tension. The most important things a child needs are stability and knowing what they are doing, when and where.
Children can cope with separation better than adults realise, so long as they have structure and routine.
Sometimes, when parents separate, things are amicable. And it follows that a sensible plan can be worked out for how best the children from the relationship can be shared. When parents cannot agree, however, it becomes necessary to think about asking the court to make rulings and decisions about where the children should live and with whom they should spend time.
The family court prefers that the parents make a parent-sharing plan. This is in the hope that the court system does not become overwhelmed. The court process can also be very emotional and distressing for all parties, especially the children.
When a parent-sharing plan cannot be achieved, the next step in the process, unless there are allegations of domestic abuse, is for the parents to apply for a mediation process. This is called a MIAM which stands for ‘mediation information and assessment meeting’.
If domestic abuse is indicated, then mediation is not recommended.
It is far easier to divorce once the children-related matters have been correctly implemented. It is also kinder to the children who must cope with their parents separating.
Divorce invariably follows the outcome of the live-with arrangements for the child. Children need the security of a home and financial stability; therefore, this is the court’s priority.
Since April 2021, the law surrounding divorce has changed. The old laws have been drawn together into the Divorce Dissolution and Separation Act (DDSA). It represents a significant overhaul and much-needed update to the law. Amongst a nest of other reforms, it heralds the introduction of joint divorce, no-fault divorce and the concept of one lawyer, two clients.
Previously, divorce was commenced by one or other of the parties, making the other party the respondent to the case. Joint divorce can be ideal for couples who wish to part amicably and have already agreed on the financial settlement. Importantly, it preserves equality, a key ingredient to safer co-parenting arrangements in the lives beyond the end of the marriage.
It was incumbent upon the applicant party to prove their grounds for divorce, and applications have been unsuccessful if the party at fault’s grounds were not sufficiently made out.
One lawyer, two clients is entirely new; currently, very few law firms offer the service because the risks of a conflict of interest remain high, especially if there are contentious matters to be resolved. However, amicable couples with little assets or a pre-agreed financial plan for separation can now take advantage of this and significantly reduce legal costs.
Financial remedy refers to the financial settlement. This can include spousal and child maintenance orders. Significant issues such as the former marital home (FMH) must be
addressed as any children of the marriage are prioritised.
When it comes to property, the basis upon which the home was purchased bears no relation to the outcome of the financial remedy proceedings. A spouse with no equity ownership in the family home may be entitled to rights and issue trust of land and appointment of trustees (TOLATA) proceedings. It is worth noting that TOLATA claims are lengthy and extremely expensive, especially where the homeowner contests the claim.
Sometimes the best outcome is for the home to be sold and the equity split according to the final terms of the financial settlement.
Divorcing parties should consider all the available options very carefully. Remember that anything you can agree with your ex-partner will narrow the issues that the court must resolve. This applies throughout the divorce process. Never give up the chance to settle. The key word is ‘compromise’.