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Funding your divorce

Funding_your_divorce

Media reports have it that Prime Minister Boris Johnson was writing a biography of William Shakespeare to fund his divorce from his second wife, Marina Wheeler. Others don’t have the luxury of penning a work of literature to pay for their divorce. So how much does it cost and how can you fund it?

At this firm, as well as offering a free 30 minute meeting, we offer a fixed fee for filing an undefended divorce, £500 plus VAT plus the court issue fee of £550, £1,150. “No fault divorce” is not due to come in until next April. Where one currently files for divorce on the basis of the other party’s adultery or behaviour, costs follow the event. In other words, one can claim one’s divorce costs from the party who committed adultery or whose behaviour is in question.

So much for the costs of the divorce. The majority of costs come in resolving financial and property matters unless there is an agreement at an early stage. One cannot rely on getting a costs order against the other spouse as such orders are only made if there has been litigation mis-conduct which is not easy to establish.

Legal aid is only available from a few franchised providers where there has been domestic violence and the party satisfies stringent means and merits tests.

So what other options are there to help fund a divorce matter? Many clients meet their legal costs from savings. The other option is to borrow. This firm accepts credit cards except for disbursements, items we have to pay out on the client’s behalf.

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Why a divorce is not enough: The need for consent orders

Consent-Order

Divorce statistics

There were 107,599 opposite-sex divorces in 2019, an increase of 18.4% from 90,871 in 2018. This is the highest number of opposite-sex divorces recorded since 2014 when 111,169 divorces were granted in England and Wales. It is also the largest annual percentage increase in the number of divorces since 1972, following the introduction of The Divorce Reform Act 1969, which made it easier for couples to divorce upon separation.

The implications of divorce

Some people get divorced without consulting a solicitor. They do not perhaps realise all the implications of the process. Many do not appreciate that obtaining decree absolute can deprive one of their former spouse’s pension’s death in service benefits.

There is a misconception that a divorce resolves financial and property matters between a couple. It doesn’t. Notwithstanding the divorce each party may still make claims against the other for income, lump sum, property and pension orders and such orders can be made against assets acquired years after separation if needs arguments prevail.

The only way to avoid future claims being made is to have them dismissed. This is normally done by having a draft consent order prepared which enshrines the agreement a (former) husband and (former) wife has reached. A consent order can create a “clean break” settlement if that is the appropriate outcome. This protects any money or assets that you may earn or receive in the future from being claimed by your ex-partner. 

What is a consent order?

A consent order is an important and technical legal document upon which each party should get independent specialist family law advice. It is made up of three main sections, recitals, undertakings and orders. Recitals set out what the couple have agreed. Undertakings are enforceable promises to the court and, if breached, punishable by way of a fine or even imprisonment. Orders are the operative part of the document and deal with financial and property matters as well as pensions. Orders can also include a dismissal of claims.

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When is half too much? Sharp v Sharp 2017

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Sharp v Sharp [2017] changed the way the courts divide up a divorcing couple's assets where the marriage is short and childless.

The Sharp’s had been married for four years, following two years of living together.  They separated in 2013 when Mrs Sharp discovered her husband's infidelity.  

They had no children together and both worked full-time.  At the start of their marriage they were both earning similar basic annual salaries of around £100,000, but Mrs Sharp received bonuses thereafter of £10.5 million.  Mr Sharp's bonuses were insignificant. 

Before they got married they bought a property in joint names for £1.02 million which was funded solely by Mrs Sharp.  During the marriage they bought a second property in joint names for £2 million.  Other than the jointly owned properties they generally kept their finances separate.

Originally the court awarded Mr Sharp £2.725 million but Mrs Sharp appealed, saying this was too much on the basis that:-

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Divorce ... who is to blame?

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At present, the only ground for divorce is that the marriage has irretrievably broken down (not irreconcilable differences as it often believed). The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault-based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent.

The Government is proposing to remove the fault based facts and the ability to defend a divorce.  The reasons are as follows:-

  1. The breakdown of a marriage is a difficult time for families. The decision to divorce is often a very painful one. Where children are involved, the effects in particular where there is ongoing conflict, can be profound
  2. Under current law in England and Wales, couples must either live apart for a substantial period of time before they may divorce, or else they must make allegations about their spouse's conduct. This is sometimes perceived as showing that the other spouse is "at fault".
  3. Both routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children. There have been wide calls to reform the law to address these concerns, often framed as removing the concept of "fault".

As such, the Government proposes a shift away from blame with 2 objectives:

  • to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course
  • to make sure that divorcing couples are not put through legal requirements which can lead to conflict and poor outcomes for children
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