Considerations before applying for a divorce or dissolution. Based on our experience when it comes to divorce or dissolution, we have put together a list of considerations that you should take into account if you are thinking of applying.
What is the difference between divorce and dissolution?
Issuing an application
To issue an application you must have been married for at least one year, meet at least one of the jurisdictional criteria based on habitual residence or domicile and your marriage must have irretrievably broken down. ‘No-fault divorce’ means couples no longer need to support the irretrievable breakdown of their marriage with a supporting fact and ‘blame’ the other. Whilst this reform to divorce law has simplified the application procedure and apportioning blame is one less issue to consider, there are still a number of legal and practical decisions you will need to make.
Considerations before applying for a divorce or dissolution
there are so many considerations before applying for a divorce, we have shared our top 3 big considerations and also given any sub-considerations within these.
If you are planning on applying we highly recommend you read the following before jumping straight in – please also feel free to contact us if you require support or representation.
1. Should I make a sole or joint application?
- On a joint application you will both be responsible for the application and called applicant 1 and applicant 2. In a sole application case you are called applicant and respondent. Working together to make a joint application is likely to reduce animosity and stand you in good stead for communicating with one another in the future, particularly if you have children together.
- The decision whether to make a sole or joint application will need to be made at the start. You cannot change from sole to a joint application after issue of the proceedings.
- If there has been domestic abuse a joint application is unlikely to be appropriate as it will allow the abuser to continue to exert control and influence over you and the process.
- You will need to be confident of co-operation by the second applicant if you make a joint application otherwise there will be additional procedural steps to take and timetable delays.
- You may need to make a sole application without prior notice if you need to secure the jurisdiction of the English court. The country where divorce or dissolution proceedings are first issued may ‘seize’ jurisdiction to deal with financial matters. Another good reason to issue without notice is if you are concerned your spouse will evade service of the application, perhaps by the leaving the country if they have a home or contacts abroad.
- Financial benefits may be lost on the making of a final divorce order. To protect your financial position you can ask your spouse to provide an undertaking (a promise) that they will not apply for the final divorce order until an order agreeing your financial remedy claims has been approved or made by the court. If you are not confident your spouse will agree to delay the application for final order it may be better to make a sole application as this will give you more control over the court timetable.
- A sole application doesn’t however prevent the respondent from making their own application for the conditional or final order but it does give you more time to try and resolve your finances. The applicant can apply for the final divorce 6 weeks and 1 day after the conditional order, whereas the respondent cannot apply until after 3 months from the earliest date that the applicant can apply.
2. What financial matters do I need to think about?
- There is a minimum of 20 weeks between issuing a divorce application and being able to apply for the first stage of the divorce (conditional order). There is then a further period of 6 weeks and 1 day before you can apply for the final order of divorce. A financial order can only be made from the date of the conditional order and will not be become enforceable until the final order. The purpose of the 20-week time period is to provide time for reflection and time for financial and children matters to be resolved. If, however you have reached a financial agreement early on there may be a long delay before you can have your financial agreement (called a consent order) approved by the court and implement the terms of your order. If this applies to you consider issuing your application straight away to minimise the delay in being able submit your financial order.
- If you don’t want to issue an application straight away, or if there is going to be a substantial delay between agreeing the terms of your financial settlement and being able to file the consent order with the court you can formalise your agreement in a deed of separation. Within the deed of separation you can provide for the consent order to be filed upon the making of the conditional order.
- The final divorce can have the following financial consequences:
- Pension benefits payable on death or insurance policies are usually only payable to a ‘widow’ or ‘widower’.
- Any bequest in a current will or any executor appointment will no longer take effect and in the event of no will being in place a spouse will have no automatic right to inherit.
- It may affect the ability to make a claim or enforce an order abroad.
- Home right notices and occupation orders over the family home will automatically end.
- Impact on inheriting or increasing state pension.
- There may be adverse tax consequences.
To protect your financial position, you can ask your spouse to provide an undertaking (a legally binding promise) that they will not apply for the final divorce order until an order agreeing your financial remedy claims has been approved or made by the court. If the applicant will not agree you can apply to the court for an order to delay the final order.
3. What practical matters do I need to consider?
- Divorce and dissolution are two of life’s most stressful events. Don’t forget to prioritise your own wellbeing and ask for help. Read our top tips to reducing stress and animosity on relationship breakdown. Our support page is also a helpful source of information, advice and support to help you navigate through this difficult time.
- If you entered a religious marriage as well as a civil marriage, you may need to follow a different process to dissolve the religious element of your marriage. It is important that you contact the relevant religious authority and seek further guidance if you are unsure.
Written by Caroline Watson
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