Divorce: D-Day As Couples Split After Christmas
By Alison Steed
This week sees D-Day – the busiest day for divorce lawyers for the whole year, as couples who have finally realised after a fraught Christmas that they can no longer live together, and start divorce proceedings.
There is no getting away from the fact that divorce is a stressful process, and an expensive one if you decide to argue about everything from who takes the lawnmower to who gets the family pets through your lawyers.
Talking to each other can be very problematic, especially if you find that you cannot even bear the sight of your spouse, but talking through lawyers can become very expensive.
Recent figures from Norwich Union showed that the average divorce bill has reached a record high of £28,000 in the UK, with nearly two thirds of couples having shared finances that they need to separate on divorce.
One law firm, DWF, which has a partner specialising in collaborative law, is trying to take some of the stress out of divorce. Carol Grundell at DWF said the system aims to avoid costly and confrontational court battles.
She added: “Instead, both partners commit to settling matters out of court by working together to reach a mutual agreement with the help of their lawyers.
“Whereas usually negotiations are conducted by letters or phone calls between the two lawyers, using the collaborative system the partners themselves meet face to face, with their lawyers by their side and with additional help from mediators or counsellors where the situation demands it.”
You would not necessarily have to go to a lawyer to take this approach, as organisations such as Relate are set up for this purpose.
The traditional divorce procedure is inherently confrontational, said Ms Grundell, with each partner pitted against the other, which will aggravate any ill-feeling already in existence.
Ms Grundell added: “The collaborative approach provides a genuine alternative and makes for a less traumatic experience. It can often create an atmosphere of respect and understanding that did not exist before and, unlike in a courtroom setting, the couple stay in control of the whole process.
“It is particularly helpful where children are involved as it sends out very positive signals. Research has consistently shown that children benefit hugely from knowing that their parents are working out their differences together, constructively.”
Some couples mistakenly think that pre-nuptial agreements will help them if they are to eventually get divorced in the UK, but that is not the case as they are not legally binding here. Even so, the number of pre-nuptial agreements have quadrupled since 2003, according to Norwich Union.
But a ruling just before Christmas in the Isle of Man determined that post-nuptial agreements – those made after marriage – are legally binding in a divorce case, according to specialists at Mishcon de Reya.
In a briefing note, Mishcon de Reya stated: “The Privy Council (the highest court in the Isle of Man, and its decisions are binding on courts in England and Wales) ruled on December 17, 2008, that the terms of pre-nuptial agreements are neither binding nor enforceable. However, agreements entered into after a marriage can be binding and the Privy Council has ruled that the mere fact that a post-nuptial agreement does not reflect what a Court would have done on divorce is not enough for it to be set aside.
“The decision has wide ranging significance for all married couples, those planning to marry and anyone contemplating getting divorced in England and Wales. Any couple that entered into an agreement prior to their marriage should consider converting it into a post-nuptial agreement. Indeed, all married couples should now consider entering into post-nuptial agreements to provide them with greater certainty if they should later divorce.”
If you are thinking about getting divorced, you can get more information at our divorce section.
