Adultery & Divorce

A marriage lasts from the ceremony until decree absolute. Any infidelity during marriage is adultery. Following separation, one or both partners often forms a new relationship and this is legally classified as adultery, although not commonly regarded as such.

Adultery is one of the grounds upon which a divorce can be started immediately. The court does not penalise adultery and it makes no difference to any financial claim whether a divorce is based on adultery or some other ground.

However, the word ‘adultery’ carries moral overtones and so we are as tactful as possible when suggesting that it is should be used as the ground for divorce.

If an instance of adultery is “condoned” it cannot be used as a ground later on. For example, if one spouse has an affair and the couple then reconcile their marriage for more than 6 months, the past adultery cannot be thrown up as a ground for divorce. It might, however, be considered part of a pattern of continuing unreasonable behaviour.

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Amicable Divorce

Often a divorce is the last step in a long process of uncoupling.  Inevitably there is hurt and regret along the way, but everyone is different as to how and when.  Very often some aspects of a separation and divorce are amicable, while others may produce friction.

As lawyers we see our job as being to build on points where there is agreement.  Very often the couple are undecided as to who should initiate the divorce proceedings.  It does not matter much in England who starts the divorce proceedings, and so deciding which of the couple should take that step is often the first point of agreement.

Another matter that is very often amicably sorted out is the practical arrangements as to who might leave home, what property is taken, who is to look after the pets etc.

Where there are children, again very often we find that parents can genuinely decide what is best for the children regardless of their own feelings about the situation.

Money matters inevitably cause the most friction, but again most couples sort them out.  Going to a lawyer helps sort them out, because as lawyers we are used to analysing financial arrangements.  Often just identifying the key issues helps, bringing clarity to the process.  We find that once people can understand that actually they are only apart by relatively small issues – whereas they may have thought that they were apart on quite major issues – helps resolves things.

But reaching an amicable settlement does not mean that one party gets their own way!  As lawyers we are always conscious of the need to get to an end-solution.  That is why we think in terms of using the court process as a goad to break a deadlock.  We do not encourage people to litigate for the sake of it.  Where we recommend issuing proceedings, it is because we want to put a timeline on the whole process.

The very great majority of our matters end up being resolved by agreement.  Talking to us is the first step.

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Annulment

Annulment of marriage is the legal process to declare that a true marriage never took place.  This is different to a divorce which dissolves an existing marriage.

Some religions make no provision for divorce, and in these cases religious annulments may be granted when marriages fail.  The grounds for religious annulments are different to those of English law.

Some marriages can be void altogether if, for example, one party was already married.  After a couple is married certain facts may subsequently emerge to qualify the marriage as voidable.  One reason could be a wilful refusal to consummate the marriage, that is, have sexual intercourse.

Invalid consent is also grounds for annulment if it is found that one party consented to the marriage under duress or unsoundness of mind.  Forced marriages are both illegal and voidable and can therefore also be annulled.

The courts do not allow annulments where a divorce is applicable.  Annulment is more complicated and costly than divorce and sound legal advice is recommended to anyone considering this option.

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Bankruptcy & Divorce

Financial hardship often leads to divorce, but divorce does not solve the financial problems.

In English law the husband and wife are each responsible for their own debts, and not responsible for the other’s.  Therefore, one can become bankrupt without necessarily bringing the other one down.  Very often however, in the attempt to stave off increasing hardship, the husband or wife may have borrowed money themselves to help their spouse.  It may not be an easy task to get that money back, if it is possible at all.  In the worst case, if the spouse has taken full joint indebtedness, say, in respect of a mortgage, their property will go as well.  A solicitor dealing with a divorce and bankruptcy has to look closely at whether the circumstances of any joint indebtedness were coerced, or even arose from forgery.

The spouse of a bankrupt has a right of occupation in their home for a year, but after that, the trustee in bankruptcy can sell it regardless of any divorce proceedings.

Sometimes the spouse can establish that he or she has a share in a property even if they are not on the title.  That requires a solicitor to carefully analyse the past financial arrangements to see if there is such a claim.  Alternatively, the spouse of the bankrupt may also have the possibility of negotiating to buy out the bankrupt’s share of the property.

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Civil Partnership

For a long time, same sex couples were ignored by English Family law. The Civil Partnerships Act of 2004 brought about legal recognition of same sex unions similar to that of civil marriage. Civil Partners are entitled to the same property rights as married opposite-sex couples and have the same tax and pension benefits. There is the ability to get parental responsibility for a partner’s children, as well as responsibility for reasonable maintenance of a partner and their children.

There is a formal process for dissolving partnerships that is similar to divorce. However, some aspects are different. For example, in the dissolution of a civil partnership you cannot cite “adultery” as a reason for the breakdown of the marriage. As with divorce, the one ground for filing for dissolution of a civil partnership is that the civil partnership has broken down permanently.

As with divorce, the Court has powers to order financial relief to parties.

Parenting Agreements:
Some same-sex couples may ask a friend to be either a surrogate to have children (in the case of men) or ask a male friend to donate sperm. It makes sense in these situations for parenting agreements to be entered into so that each party knows the extent of their rights and responsibilities (including any financial responsibilities). There should be clear guidelines to avoid any dispute in the future. These can range from full co-parenting, to surrogacy or sperm donation only. Brookman are able to draft such agreements. There are also issues to consider of Parental Responsibility.

It might also be worth considering a pre-registration agreement. Please view our pre-nuptial contracts page for more information.

International Aspects:
Where couples either have assets spread internationally, or one party hails from another country, there may be international aspects to consider. Firstly, existing property must be reviewed, because a same sex union may not be recognised in one partner’s country of origin. Secondly, the consequences if a possible dissolution of the partnership and any financial settlement must be reviewed. Where a same sex couple has registered a relationship overseas and this meets various criteria, they will be counted as having formed a valid civil partnership in England and Wales and the civil partnership will need to be dissolved in the usual way.

Co-Habitation

Not all unmarried fathers have automatic joint parental responsibility. They may need to take legal steps to obtain that so as to have a say in their child’s upbringing. In relation to finances many countries have laws regulating division of an unmarried couple’s property but not England. Instead there is a complex set of rules deriving from case–law.

If property is in one partner’s sole name, even though both put money in, the Courts may decide there was an agreement to share ownership. This can be through an express or an implied trust or contract. The rules are technical and the outcome often depends on small points of detail.

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Contested Divorce

The respondent to a divorce petition has the right to contest it, unless the couple divorce by mutual consent following a 2 year Separation. To contest the petition means to challenge the grounds for divorce. A respondent to an adultery petition may deny the act of adultery, for example, and the judge would then have to hear the evidence and decide whether or not adultery took place.

The result of a successful defence is that the couple stay married. However, a partner filing for divorce is generally a clear indication that a marriage has broken down, and is not worth defending. Respondents can file a statement denying the facts alleged in the divorce petition, but nevertheless confirming that they do not intend to defend.

Often both spouses have equally valid reasons for divorce, but this is not a reason to defend one partner’s petition.

There may be good reason to defend if there is a dispute as to which country should deal with a divorce. In this case a successful defence may be of great importance in establishing priority for a divorce proceeding in another country.

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Divorce Paperwork

The Court needs a number of documents when you file for divorce.  You have to file a Petition setting out the basis of the divorce, and you must file an official form of marriage certificate.  If it is not in English, you will need a translation.  If you have children then you must also file a Statement of Arrangements concerning them.  When a solicitor files the papers, a Certificate Regarding Reconciliation advice must be filed.

The Court processes these documents and they are sent (“served”) on the other party, who has a limited time to file an Acknowledgement.  There is a further limited time in which the other party can file a Defence.

If the other party does not file an Acknowledgement of Service there may have to be proof of service by other means.

Then the Petitioner applies to the court for a certificate confirming that the contents of the Petition are proven, that the papers have been served, and that the time for filing a defence has expired.  A Judge will make that certification and list the matter for a decree nisi.  Six weeks after decree nisi, the Petitioner can apply for the decree to be made absolute.

The process is essentially administrative and does not require any personal attendances unless there are special circumstances.

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Divorce Rights

Most divorces do not require the consent of the other party. The petitioner of divorce can act unilaterally, unless the divorce is based on 2 years separation with mutual agreement.

Both the partners have potential rights arising from the marriage, such as spousal maintenance (in addition to any child maintenance), transfer of property, or lump sum payments.

Custody issues are not covered by divorce, and any disputes concerning custody or contact are dealt with by separate proceedings under the Children Act 1989.

However, occupation orders, domestic restraint orders, freezing orders and disclosure orders may be part of divorce proceedings. Passport control orders can be part of either divorce proceedings or Children Act proceedings.

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Domestic Violence and Domestic Abuse

Domestic abuse invokes thoughts of a thuggish man beating his whimpering wife. But domestic abuse is far more common and widely dispersed than we realise, and happens in relationships in far more ways than punches and blows. What, then, is domestic abuse?

Whilst it can happen to anyone, domestic abuse is often excused, denied, belittled and sometimes not even realised. Abuse can be physical but it can also be verbal and psychological. The first step, experts say, is to acknowledge that it is happening. This is something which can be hard for men – due to the stereotypical alpha male expectation and the assumption that it only happens to women and hard for women who believe that a male is “head of the family” and sometimes “needs to exert control”.

Domestic abuse arises when one person in an intimate relationship or marriage tries to control or dominate their partner. An abuser does not ‘play fair’, but strives to gain and maintain control over their spouse. Fear, shame, intimidation and threats can all be used to wear the victim down and keep them under the thumb. Often once control like this has been achieved it does not have to be repeated; the abuser only has to make a warning gesture to keep dominance. It can happen to anyone, with victims spanning across all age ranges, ethnic backgrounds and economic levels; women or men, married or unmarried, young or old: domestic abuse can happen anywhere where control is desired.

Getting out in the open and discussing the issue is an essential step in ending this treatment, and helps break down the fear that hold victims back from help more generally.

Such behaviour is not acceptable, no matter who it comes from or how nice the person might appear to the outside world. Fear that no one will believe them because their spouse is such a popular person often holds people back from reporting. Often in domestic abuse cases, aggression escalates, with abuse starting with the occasional, derogatory, throwaway comment and ending with full blown physical violence. Whilst injury is the most obvious danger, emotional and psychological attacks can cause long-lasting damage on abuse-targets.

Signs of an abusive relationship involve feeling the need to tiptoe around your partner for fear of triggering their ‘blow up’ or your partner making little digs and snide comments that might seem jokey but actually wear you down and cause feelings of helplessness, shame or self-loathing.

Whether you consider your spouse to be a difficult person or an abuser, the situation is clear: a marriage that causes distress, unhappiness or physical or mental damage must be terminated with help of professionals. Nobody should live in fear of the person they love.

Here are some further sources of help:

• UK: call Women’s Aid on 0808 2000 247.
• US: National Domestic Violence Hotline on 1-800-799-7233 (SAFE).
• Australia: call 1800RESPECT on 1800 737 732.
• Worldwide: visit International Directory of Domestic Violence Agencies for a global list of helplines and crisis centers.

Male victims of abuse can call:

• U.S. and Canada: The Domestic Abuse Helpline for Men & Women
• UK: ManKind Initiative
• Australia: One in Three Campaign

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Family Business Issues

It is not uncommon that in a long relationship, family members will go into business together or even set up a series of businesses. Sometimes these businesses involve the adult children in the family and quite often they involve a complicated web of corporate vehicles.

Simple & complex business structures

Examples of family business structures we have dealt with often include monies invested by the in-laws and also monies invested by the children. At its simplest, this may be a partnership or limited company where different amounts of money have been invested over the years. At its most complicated, ten to forty separate companies in separate countries may have been set up and the various different members of the one family may hold numerous different directorships, interests or shares in the different companies. This makes it all the more important to establish the value and ownership percentages of different members of the family at an early stage.

How to agree a company valuation

Sometimes the correct approach is to use an independent expert to establish an agreed value of the company or corporate group. Coming to an appropriate settlement may involve having other family members “intervene” in proceedings to protect their interests in the family businesses. Similarly, in-laws or other interested parties may do the same. Discretion and confidentiality may also be important if, for example, one of the family businesses is publicly listed or has outside investors or stakeholders. It is possible to obtain orders or agreements on confidentiality if this is required. The Family Court can also make a wide range of orders which extend to and include companies as well. In some proceedings a separate company series of orders and agreements may also be reached in separate specialised courts if it becomes necessary. We recommend considering and weighing up all the options carefully before proceeding.

If you have some family business interests that you wish to protect we recommend you contact us. See also our problem scenario below.

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Family Therapy

Counsellors tell us that sometimes, a relationship that appears to be dwindling simply needs some TLC to get it back on track. Time, effort and a caring attitude can easily end up at the bottom of the ‘to do’ list for those with hectic and demanding lifestyles. Many couples find that the best way through an increasingly distant or contentious relationship is to invest time in your partner by discussing your problems in a third party environment. These days, an increasingly common option chosen by couples in need is family therapy.

Family therapy provides a safe environment in which couples can discuss their issues in the presence of a third party. The mediator is not there to take sides or assert their opinion on your scenario; instead, a mediator works to encourage shared understanding and to help the couple see each other’s side of the story. They are present to keep anger or disputes from bubbling up, and to encourage partners to see ways of moving forward in their relationship.

Meetings tend to last around an hour and are not necessarily just for couples in contentious marriages. Family therapy can be used to address issues between children and parents, parenting issues, family structures and any other issue between different family members. For example, many step-children issues are the subject of family therapy.

In situations where one partner is keen for family therapy and the other is resisting, it is advisable to discuss the best steps forward with a solicitor, who can discuss alternative approaches to encourage the other and the possible options if that does not work.

Where serious issues have arisen, family therapy may not ‘fix’ a marriage but almost always improves the chances of a relatively amicable divorce. Of course, it depends on each couples’ scenario but in all cases of unhappy marriages, it is always advisable to seek third party assistance from a solicitor, mediator or both.

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Filing For Divorce

A divorce petition is filed at court.  The petition will be based on irreconcilable breakdown of the marriage, shown by any of:

• Adultery by the other
• Unreasonable behaviour by the other
• 2 years separation with mutual consent
• 5 years separation

The petitioner decides whether the court is to post the petition out to the respondent or whether he or she will arrange for the respondent to receive it.  This is called “service”.

The respondent will need to fill in a form of acknowledgement and return it to the court.  Following this, there is a space of 3 to 4 weeks in which the respondent may file a defence.

If the respondent does not send the acknowledgement of service, the petitioner applies to a district judge to prove that the respondent did, in fact, receive the petition.

The petitioner must apply for a judge to certify that the petition is proven.  The petitioner will lodge a sworn statement in order to verify the petition.

The judge then certifies that the facts are proven and sets a date for pronouncement of a decree nisi.

No–one has to attend court.  On the day set for pronouncement of decree nisi the judge makes the decree, and may also order the respondent to pay costs.

Then after 6 weeks the petitioner can apply for the decree absolute to be made.  The divorce is final when the decree absolute is granted.

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Grounds for Divorce

In English law the ground for a divorce is irreconcilable breakdown of a marriage.  This is established by adultery on the part of a spouse, unreasonable behaviour on the part of a spouse, mutual agreement to divorce plus 2 years separation, or 5 years separation.

Adultery or unreasonable behaviour does not have to occur pre–separation and the petitioner does not have to definitively prove the allegations.  If the respondent does not defend (and it is very uncommon for a respondent to defend), then the petitioner can proceed.  If it is difficult to prove adultery, often a similar ground such as “improper association” will cover the situation.

The court does not require an offensive level of detail in allegations of unreasonable behaviour (see our ‘what is unreasonable behavoiur?‘ page).  A calm statement of facts which reasonably establish that the marriage has broken down is sufficient.  Often, allegations of adultery can be made by either party.  This does not cancel out the petition, but means that both parties have potential grounds for divorce.

Divorce by mutual consent plus 2 years separation is straightforward, but there can be practical difficulties in getting the other party to sign on the dotted line.  It is therefore prudent not to file on that ground without checking whether or not there will be any issues.

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Mediation

It is good for everyone if a divorce and separation can be resolved amicably. Wherever possible we try to resolve matters by agreement, whilst making sure that we stand by our clients’ interests.

Where matters cannot be easily resolved, litigation in a court is not the only way forward.

There is a confusing list of different names for different steps in the process, which are explained below:

• Mediation consists of a series of off the record but structured discussions with a trained mediator. Often the mediator is a separate lawyer. Lawyers are not present in the mediation sessions, but they generally give steering advice to their clients while the mediation continues. Mediation can be quite lengthy and for that reason can be moderately expensive.
• Negotiation is just that. Lawyers always negotiate in divorce disputes and the great majority of matters are settled before any court proceedings at all or at least before court hearings.
• Collaborative law is a process whereby the lawyers undertake to negotiate a matter to a settlement. They sign an undertaking that if they do not reach a settlement, they will no longer act for the client. The theory is that then the lawyers will have an interest in arriving at a result rather than taking a litigious approach, but there is no evidence that these undertakings have that effect.
• “Collaborative law-lite” is where the solicitors do not sign such an agreement, and as such it is, in effect, a meaningless statement of intent only, and no different to ordinary negotiation.
• Alternative dispute resolution is a label that covers all of the above, and also arbitration proceedings.
• Arbitration is when the parties engage an arbitrator to decide their matter, rather than a judge in court. Although the cost of the arbitrator can be significant, arbitration often saves time and money by condensing the process.

We consider that it is important for a client first to have a good understanding of their position before they enter into one of these processes.

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Separation

Separation is one basis for divorce.  However, many divorces are brought on different grounds of divorce while a couple are still living in the same house.  It may be necessary to prove a date of separation particularly in financial proceedings.  This is simply a matter of evidence, for example proof that one party took up a new tenancy in their sole name on a particular date.

However, English law does not have a set rule that assets acquired after separation are ignored for settlement purposes.  One party can seek a Court Order for sole occupation of a dwelling which will force a separation.  This may be granted if behaviour is aggressive or unacceptable on any reasonable standards.

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