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Dealing with the breakdown of a marriage or civil partnership is hard enough, but it can be overwhelming trying to understand all the legal issues that arise too. The decisions that you make during your divorce or dissolution can affect you for a long time, so it is important to obtain proper legal advice.
The Divorce, Dissolution and Separation Act 2020 came into force in April 2022. Under the law in England and Wales there is only one ground for divorce and dissolution and that is that the marriage or civil partnership has broken down irretrievably. There is no longer the need to prove one of the facts to satisfy the court of irretrievable breakdown.
Instead of divorce or dissolution, you may choose to issue Judicial Separation proceedings. Either party can issue such an application, individually or jointly, even if they have been married for less than one year. The procedure for Judicial Separation is very similar to that of divorce and dissolution, except it is not necessary to show that the marriage or civil partnership has broken down irretrievably.
Nullity, or annulment, legally ends a marriage or civil partnership and can be applied for if certain criteria are met regardless of the length of marriage or civil partnership.
Most people who decide to divorce or end their civil partnership must also consider how to divide the family assets. The first step is to identify and value all the assets that will form part of the ‘pot’. This is done by providing each other with details of your respective incomes, capital, properties, and pensions. This process is called ‘financial disclosure’. In some circumstances, it may be possible to exclude certain assets from the pot.
Once the extent, and value, of the pot has been agreed, you and your partner can proceed with negotiating a settlement regarding the division of your assets. You can reach such settlement by negotiating directly with your partner, or you may prefer to attend mediation together. Another option is to instruct separate solicitors to negotiate a settlement on your behalf.
If agreement cannot be reached in any of these ways, one of you may issue court proceedings to ask the court to determine the matter. There is no “formula” for splitting assets on separation. Each case is different. The court takes various matters into account when considering what order should be made, such as the duration of the marriage or partnership, the ages of each party, the standard of living enjoyed by the family, the conduct of each party in some cases, but gives first consideration to the welfare of any children of the family under the age of 18. This list is not exhaustive. The court’s objective is to achieve a fair outcome; a fair outcome does not necessarily mean an equal division of family assets. The court can make orders in relation to child and spousal maintenance, property, capital, and pensions.
Once the divorce or dissolution is finalised (Final Order is pronounced), your former partner may still be able to make a financial claim against you or your estate. They can make such a claim at any point in the future before they remarry or enter a civil partnership. The only way to avoid such a claim being made against you is to ensure that your respective claims against each other are dismissed, which can be achieved by having a clean break on divorce/dissolution. A clean break clause is included in your Consent Order, although in some circumstances it will not be appropriate or possible to have a clean break. A Consent Order is the document which sets out the terms of your agreement in respect of division of the family assets.