What to consider before deciding to divorce

Relationships can be wonderful: buying or renting a home together, getting engaged to marry in the future, being recently married, or bringing two families together and for many, seeing a lawyer may not be high up on a ‘to do’ list!

Nevertheless, it is important to understand your legal rights when getting together and protect your position and particularly the position of any dependent children if things don’t work.

In particular, I find that it is not always understood that a divorce itself does not end the financial obligations on couples and unless a consent order is obtained to finalise the finances the other party can bring a financial claim at any point in the future.

Without a pre-nuptial agreement, you may become exposed to financial obligations

When people get married (without a pre-nuptial agreement), they become exposed to a variety of possible financial obligations. Those obligations take effect if the parties divorce. On divorce, one spouse may be legally required to pay maintenance to, share their pension with, and contribute towards the housing costs of the other spouse. The same is true for civil partners. This can give rise to arguments about how much maintenance should be paid, how much of the pension should be shared and how much (if anything) one spouse should contribute to the other spouse’s housing costs.

Start with informed negotiations

The best way to address these questions is through informed negotiations. If that doesn’t work, there is a court process which allows a judge to decide the outcome. The court process should be a last resort. Good matrimonial lawyers are skilled in conducting these negotiations, which are often underpinned by financial disclosure.

If the question of who gets what is not resolved and finalised around the time of divorce, each spouse’s claims against the other will remain open indefinitely. That is not satisfactory and should be avoided. No one wants to face a matrimonial claim 15 years after divorcing. Finality means the court’s approval.

In every case, the outcome must be fair

This means that people very often reach an agreement after informed negotiations. But how does the court satisfy itself that an agreement is fair?

The agreement reached is written up in a consent order, which is sent to a judge along with a basic summary of the parties’ assets and income. That summary is called a D81. The judge can either approve the agreement, ask questions about the agreement or outright reject the agreement. The role of that particular judge is very important because they have the power to reject an agreement which has been quite literally agreed and put forward by both spouses. If they can reject an agreement, on what basis?

The guidance comes from a former President of the Family Division of the High Court when he said:

“The judge is not a rubber stamp. He is entitled but not obliged to play the detective. He is a watchdog, but he is not a bloodhound or a ferret.”

L v L [2008] 1 FLR 26.

Family law is discretionary. Was there ever a more epigrammatic example?