priya gill liaudet

10
Dec
2020
No Fault Divorce

No Fault Divorce

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No Fault Divorce has finally been introduced to England and Wales after years of campaigning by Resolution, the community of family justice professionals, and family lawyers, who welcome the change.

The Divorce, Dissolution and Separation Act was passed by Parliament in 2020. The purpose of the Act is to remove fault from divorce, helping couples to separate and divorce without blaming each other.

I am particularly happy with the change. Removing fault from the divorce application, the first stage of the divorce process, should reduce the animosity and help divorcing couples have a good divorce.

Family Lawyer Consultation with client

This is certainly how I prefer to act for my clients during a divorce. I do acknowledge, and regularly come across situations when it is necessary to take a firmer approach. In any event, I am confident that the Act, once implemented, will reduce conflict allowing couples to agree child-focused arrangements and fair financial settlements by starting the divorce without making accusations against each other.

In my view, the change will also help if you are unsure about starting divorce proceedings. You may consider speaking to a family lawyer and/or initiating the process sooner. This is because you no longer need to worry about what you have said about your spouse in your divorce application and how they might react. For more information about starting divorce proceedings, read my article here.

The Current Law

Currently there is one ground for divorce, the irretrievable breakdown of the marriage. You must rely on one of the five following facts:

  • Adultery
  • Behaviour
  • Desertion – 2 years
  • 2 years’ separation with consent
  • 5 years’ separation

If you have not been separated for more than 2 years then you are left with two options. If adultery is not applicable then you must rely on behaviour. This is the fact that requires you to blame your spouse. Whilst the types of behaviour can be mild, this can sometimes not be enough to satisfy the court. The recent case of Owens v Owens 2018, where Mrs Owens was not permitted to divorce her husband because her behaviour examples were considered too flimsy, highlighted how out of date the law relating to divorce currently is.

What does No Fault mean for Divorce?

The Act will make the following changes to the current law:

  • The five facts above will be replaced with a statement to show the irretrievable breakdown
  • The other party will not be able to contest the divorce
  • It will provide an option for a joint application
  • They will remove old fashioned legal terms with plain English
  • Decree Nisi will be called a Conditional Order and Decree Absolute will be called a Final Order

When does No Fault Divorce start?

The government is still working on the implementation. It is hoped that you will be able to start your no fault divorce in Autumn 2021 or the beginning of 2022.

Can I have a good divorce before No Fault Divorce starts?

Absolutely! I actively encourage it. Having a good divorce is largely reliant on how you and your spouse approach the divorce. It is also important to engage a divorce lawyer who shares your approach. The current divorce procedure should be used to have a good divorce if you cannot wait until the end of 2021 or the beginning of 2022 to start divorce proceedings.

If you need help with your divorce or would like to arrange an initial consultation to speak to me at my office in Kensington about your divorce

do call me on 0203 916 5585 or

Email me

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Posted by admin in Divorce
06
Sep
2020
Are pre-nuptial and post-nuptial agreements legally binding and what are the advantages of entering into them?

Are pre-nuptial and post-nuptial agreements legally binding and what are the advantages of entering into them?

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The court uses a three stage test when considering whether to uphold the terms of a pre-nuptial or post-nuptial agreement:

1. The agreement must be freely entered into;
2. Both parties must have a full understanding of the terms of the agreement;
3. It must be fair to hold the parties to this agreement.

If you are considering entering into a pre-nuptial or post-nuptial agreement the following may help with the decision making.

Advantages

1. You will make it clear, and agree at the outset of your marriage, as to whether a particular asset is yours alone, or whether you are happy for it to be shared on any future divorce. This provides certainty and avoids lengthy and costly litigation in the future, which in turn saves you in legal fees.

2. You will provide each other with disclosure of your assets before any agreement is reached, allowing you to agree to protect any assets, such as gifts or property received before the marriage. You can also protect your assets from any of your partner’s debts now or in the future.

3. Entering into an agreement should lead to fewer arguments about your finances and will help you communicate about financial matters during the marriage.

4. The agreement will protect any assets ring-fenced for your children and will set out what will happen to your assets on your death, ensuring that your children are taken care of.

5. If you are concerned that your partner wishes to marry you for your money, the agreement should help to put your mind at rest.

Disadvantages

1. The agreements are not legally binding, however, following the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, the court will uphold a pre-nuptial agreement and a post-nuptial agreement if it satisfies the three stage test above.

2. The agreement cannot anticipate what will happen in the future. If there is a significant change of circumstances, it is unlikely that the agreement will be upheld by the family court. In an attempt to ensure that the agreement is upheld by the court, the document should be reviewed on a significant change of circumstances, resulting in further legal fees and potential upset, and puts a strain on your relationship.

3. The court is unlikely to uphold an agreement that is no longer in the best interests of any children of the marriage. Any agreement reached will be dependent on the circumstances of the children at the time of the divorce.

What is the difference between a Pre-nuptial and a Post-nuptial agreement?

A pre-nuptial agreement is entered into before the marriage and the post-nuptial agreement is entered into after the marriage. The same rules apply to both documents.

Should I be offended by a pre-nuptial or post-nuptial agreement?

It might come as a bit of a shock but try not to be offended. Think of it as a practical step to be open about your finances and how you will communicate this in your marriage. Always take legal advice from a family lawyer to ensure that the agreement is fair and in your best interests.

What if they will not marry me without the pre-nuptial agreement?

Do not feel forced into signing or entering into an agreement without taking legal advice first as you could end up dismissing some of your legal rights. If the other party insists on the agreement, inform them that you will need to speak to a family solicitor before signing and they must allow you the time to do so. Once you have taken advice you will then be in a position to decide whether entering into the agreement is right for you.

If you would like to know more about pre-nuptial and post-nuptial agreements, or if you are considering entering into one

Email me
Family Lawyer in London

Priya Gill Liaudet is a specialist Divorce and Family Lawyer who leads with empathy and deals with family matters constructively

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Posted by admin in Agreements, Divorce
21
Jun
2020
When should I start divorce proceedings?

When should I start divorce proceedings?

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When you first start considering divorce proceedings it can be a daunting and somewhat isolating experience. You may be concerned about the hostility and upset it will cause you, your spouse and the children. Being sensitive to the timings can help to keep the divorce as amicable as possible. The key is finding the right divorce solicitor for you. This will help to ensure that the divorce is dealt with constructively, with a child-focussed approach, whilst also feeling like you have someone on your side.

You may feel that you are not ready to start divorce proceedings immediately following a separation. If this is the case you should still take legal advice to learn about your rights and to understand the divorce process itself. Having this knowledge and information should offer you some peace of mind.

Family Solicitor

 

My role as a family and divorce solicitor is to ensure that you understand the law and to support you through the divorce process. I will draft your divorce papers and help you to navigate through the divorce settlement with empathy and compassion. Having a family solicitor does help to lessen the burden, as even an amicable divorce can be stressful.

 

It is important to consider the welfare of your children when taking this decision, but your welfare is just as important.  The sooner you start divorce proceedings, the sooner you take steps forward and can start to think positively about your future. A simple, amicable and straightforward divorce could take eight to twelve months to complete. This can extend to two, and in some circumstances three years, when financial matters are being dealt with at court.

I understand that this is an upsetting time for you and that you may be dealing with a range of emotions. You will need time to work through these emotions before you are ready to commence divorce proceedings.  At my initial consultation I will provide you with family law advice to consider. This includes understanding the divorce process, discussing the arrangements for the children and advising you with regards to a financial settlement. It can be a lot of information to take in one session. I will leave you to digest this information and get back to me when you are ready to get started.

How much does it cost to start divorce proceedings?

There is a court fee of £593. This is paid to the Family Court when the divorce petition is sent to them for issue. Your legal fees will depend on the complexity of your case. Most solicitors offer a fixed fee for the divorce process (not the financial agreement) or will be able to provide you with a clear estimate after speaking with you.

When can I start divorce proceedings?

Provided you have been married for one year and a day, you can start divorce proceedings whenever you consider it appropriate. 

How long will it take to complete my divorce?

It can take between eight to twelve months, sometimes longer. It will depend on the court processing time and whether your spouse co-operates with the divorce process, and is also committed to resolving matters amicably. The financial agreement can be resolved within this timeframe if it is agreed by consent. If it is not agreed, the court process can take two or sometimes three years. 

When did no fault divorce start?

It has not started yet and it is estimated to come into force in Autumn 2021. In the meantime you must rely on the current facts adultery, behaviour, desertion, 2 years’ separation with consent and 5 years’ separation.

What happens if the Respondent refuses to sign the divorce papers?

If the Respondent refuses to complete and return the acknowledgement of service to the court, you may instruct a bailiff or personal server to serve the papers on the Respondent. This confirmation of service can then be used to apply for your Decree Nisi.

What is Decree Nisi?

Decree Nisi is the second stage in the divorce process. After considering your divorce petition and the Respondent’s acknowledgement of service, the court will pronounce that they see no reason why you shouldn’t divorce and will issue a conditional order called Decree Nisi. Six weeks after the pronouncement of your Decree Nisi you can apply for Decree Absolute, which is the third and final stage in the divorce process. You should not apply for Decree Absolute until your financial settlement is agreed and sent to the court.

I have received divorce papers, what should I do?

If you are the Respondent in receipt of divorce papers you should consult a family solicitor who will explain the divorce process and the terms of the divorce petition to you. Standard clauses used in the divorce petition may appear hostile and aggressive (when they are not intended to be) to someone not familiar with the legal terms.  Speaking to a family solicitor will put you at ease.

If you have received divorce papers or are unsure about starting divorce proceedings, please do contact me. I will advise and clearly set out the options available to you. You will then have the information you need to make an informed decision. This will help when deciding whether to start divorce proceedings or not. If you are the one responding to divorce papers, it will reassure you to understand the terms and the options available to you. 

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Posted by admin in Divorce