This is a question I am often asked. I am not sure if this will be asked when the law is implemented for no fault divorce. I suspect it still will be a question that troubles many. So, disclaimer: my comments are based on the current law in July 2020. The old 1973 law that says one ground for divorce and one of five ‘facts’ that have to be proven too. Let’s get to it
Does the reason for divorce affect the financial settlement?
In other words, does starting the divorce give you an advantage in sorting out the financial stuff. No. It does not. Except if you get remarried before sorting out the finances because hopefully you would have ticked the right box on the petition to avoid locking yourself out of being able to play a full part in sorting out finances.
So the reason for the divorce won’t affect the financial settlement?
The typical family solicitor answer here: it depends. In 99% of the cases I deal with, no it would not. But there is always that 1% outlier, right? If the reason for the divorce is directly linked to financial matters, it can be relevant. For example, say one party was so badly assaulted by the other that they were disabled in the attack and could not work. Fact for divorce is behaviour and the behaviour would be directly relevant to the financial situation because the other party could not work and earn.
The usual sort of behaviour reasons in the majority of the cases will have no effect on the financial settlement, not only because of there being no impact on the finances but also because the level of assets involved are generally not huge. Of course, there are big money cases but those are not the majority. Most people are just getting on okay, without lots of spare money.
So why bother starting first?
Well, the advantages are that you keep control of the process, cost and choosing the solicitor to do the work – if you decide you need one/want one. You might also feel, personally, the need to start things off.
But the other person started and now everyone will know what they are saying about me.
No. ‘They’ won’t. A divorce petition is a confidential document that cannot be disclosed outside of the divorce proceedings without permission of the court. Flashing it around the pub would get the person doing it in serious bother. The divorce document that is public – decree absolute – doesn’t say anything other than the names, the date of the marriage and the date of the divorce. The reason is not mentioned. You can only tell who started the proceedings and not why.
Can we agree then who will start and on what basis?
Of course you can. You have to tell the truth in the court documents – you can’t just agree to cook up a story between you both – but you can agree who will start and get a heads up about what they will say. That is much more civilised that court documents arriving on the doormat out of the blue.
It is also a good idea to deal with how the costs of the divorce will be paid. Are you paying half each? Should one pay a bit more than the other?
If you need advice about separating and living apart, contact me. You can book an appointment online via the Service Portal on my website.