Divorce and avoiding court – the current position

The majority of UK judges will refuse to allow a divorce case proceed until the two parties involved have attempted family mediation. This is when an impartial assessor mediates between the two parties and tries to hammer out an agreement over the marital assets, as well as access to any children.

Even with growing numbers of law practitioners and relationship specialists advocating the use of family mediators as a less upsetting, more rapid and inexpensive solution, Relate, who are the UK’s most prominent provider of couple’s support, suggest that mediation is still misconstrued as a form of therapy. This is as opposed to countries like Australia and Canada where an established, successful history have made mediation a common route.
Relate claim that the popular but incorrect assumption that mediation can only be utilised by couples where there have been elements of domestic abuse (due to legal aid cuts), has contributed to a severe decrease in those accessing mediation since April 2013 (when the new guidelines were put in place.)

Decreases in the government expenditure towards legal aid has also contributed to a sharp increase in members of the public representing themselves in court. Based on statistics from HM Revenue & Customs, 46% more people went through a divorce case without proper representation in the 9 months preceding Dec 2013, compared to the same period in 2012.

This has led to divorce courts being inundated with self-representing litigants leading to serious delays, warn lawyers. Divorce on its own can be comparatively simple. However, negotiating a financial settlement can be extremely difficult for people who represent themselves in court; most people have no knowledge of the complexities of different types of settlements, or the legal consequences of different solutions, such as splitting pensions.

Another component adding more concern are the changes to tax for couples where the primary asset is the family property. Prior to George Osborne’s Autumn Statement last year, if you were married/in a civil partnership and have separated, if you sold your main property you would be eligible for tax relief on capital gains for 3 years after the separation. This has now been decreased to just 18 months.

Therefore, there is an 18 month deadline regarding the sale of the primary residence, starting from the date an individual leaves the civil partnership or marriage. If this deadline is missed, when the individual that has left wants to realise their equity, they will be presented with a significant tax bill.

Increasingly, couples are choosing to have a prenuptial agreement drawn up for them (also called pre-nup for short.) This gives them peace of mind that, should the relationship not last, they can avoid the cost and complications of divorce.

Pre-nup enthusiasts reason that, despite the unromantic impression that pre-nups give, it promotes a transparent environment where both parties have total faith regarding their joint and sole finances, especially when it comes to aspects such as inheritance left for children from previous marriages, family trusts and bequests.

Not many divorce lawyers would have advocated a prenuptial agreement a decade ago. To this day, they are not legal. Despite this, the number of couples who choose to draw up a prenuptial agreement is growing, bolstered by the milestone court case between German heiress Katrin Radmacher and her ex partner, Nicholas Granatino. In 2010, the UK Supreme Court decided to uphold the prenuptial agreement between both parties. Only this year, the Law Commission lent support for pre-nups to become legal in England & Wales. This is, however, not likely to occur till after the next general election.
Until then, separated partners who are reluctant to negotiate with each other face an expensive, difficult, and perhaps bitter experience, irrespective of house prices rising or falling.

Call our specialist Family Mediation and Collaborative Law Divorce Solicitors today

SALISBURY [01722] 422300

AMESBURY [01980] 622992

ANDOVER [01264] 364433             

OR e-mail our team using the email contact form below

Comments or questions are welcome.

* indicates required field