Divorce and Separation

Rosy Border, Jane Moir

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135333355
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Pocket Lawyer series is designed for members of the public who want 'how to' guidance in situations that would normally require expert advice.

Each title:

• is written by experts in their field
• contains all the information you need in one book
• has an accessible and user-friendly layout and structure
• is supported by a companion website providing free updates and ready-to-use documents and letters.

This book enables you to explore the options available to you when a marriage breaks down. It gives you all the information and paperwork you need, from conciliation and meditation through to separation and divorce. It provides the agreements and forms required for a mutually agreeable separation or a simple, uncontested DIY divorce. If you need to find a lawyer, Divorce and Separation will help you find one. It will also help when children are involved, offering advice on breaking the news to them and making arrangements for them.

1
Can we work it out?

A troubled marriage

Marriages can get into trouble for a variety of reasons. Sometimes you can grit your teeth and soldier on in the hope that you are just going through a bad patch and that things will get better. Often they do; every marriage has peaks, troughs and plateaux.

Sharing your troubles with friends who have survived similar experiences can be helpful, but you may reach the point where you need to explore other options:

• conciliation and counselling;
• separation; or
• divorce.

You need to be aware of the implications of your choice on:

• your children;
• your finances;
• your home.

We explore the options with you but first of all, remember – and we print it in huge letters:

IT NEEDN’T BE ANYBODY’S FAULT!

There is far less talk about guilty and innocent parties than there used to be. In ordinary divorce proceedings the courts are not in the retribution business. They are not interested in punishing anybody for bad behaviour or rewarding anyone for virtue. If, after examining all the options, you do decide to seek a divorce, you will find that the courts are far more interested in protecting the vulnerable – especially children – than in blaming either spouse for the break-up of the marriage. For the sake of those same children, not to mention your family and friends, it is important to settle everything as calmly as possible.

Talking it over

If you and your spouse are still on speaking terms, it may be worth trying to resolve your differences yourselves. Meeting on neutral ground, with a written agenda like a business meeting, is one strategy which some couples find helpful, but this takes a lot of goodwill on both sides, and without a third person to referee the discussion there is a danger that the more forceful personality will have all their own way.

If you find it difficult to talk out your problems without one or other of you getting bulldozed, or the discussion degenerating into a screaming match, you should consider calling in a mediator.

Couples in trouble have a wide choice of skilled help to assist them in making sense of their problems – money, the family home, business issues, debts and, not least, the children – and to steer them towards a solution without incurring crippling legal costs.

In 1996 a new Act was passed. At the time of writing, the parts of the Family Law Act 1996 relating to divorce have not come into force (Part IV relating to domestic violence is, however, in force) and the Department for Constitutional Affairs has announced that it will not be brought into force in its present form. The aim of this Act is to discourage couples from starting divorce proceedings before they have tried mediation. Even though the Act has not become law, it is already influencing the thinking both of professionals and of the Legal Services Commission (LSC). The LSC requires couples to attend a mediation screening appointment before their solicitors can apply on their behalf for a full public funding certificate. You do not, however, have to attend a mediation screening appointment to obtain legal advice under the Legal Help Scheme (for more details about the Legal Help Scheme and public funding, see p ).

Conciliation and counselling

Forget words like conciliatory, with undertones of appeasement, placation and sucking-up. Conciliation in this context simply means getting a third person, usually a trained counsellor, to help you both to resolve your problems for yourselves.

The difficulty with conciliation or marriage guidance counselling is that it takes time to set it up, and you may need (or believe you need) help at once. There may, according to local needs and conditions, be a waiting list of several months to see a Relate counsellor (see ‘Useful contacts’, p 168, for details). We know couples who, by the time their appointment with Relate came up, had decided to give their marriage another chance.

You may face a long or inconvenient trip to your nearest counsellor. Provision is not uniform – much depends on where you live, and the nearest counsellor may be many miles away with only minimal public transport available. Couples without a car are really penalised here.

Even so, conciliation is always worth considering and worth any amount of inconvenience if it works for you. Clearly, if your spouse has just come home roaring drunk and knocked you about (and if they have, you should turn to Chapter 8 now!), an appointment with a counsellor in three weeks’ time is not much help. However, in general it is unwise to decide that your relationship is damaged beyond repair without giving conciliation a chance.

Possibilities are as follows:

• Relate (see ‘Useful contacts’ and your local telephone directory);
• local organisations (such as, in Suffolk, PACT (Parents’ Conciliation Trust)) that specialise in looking after the needs of the children (check with your local Citizens Advice Bureau (CAB) for details of similar organisations in your area);
• some doctors’ surgeries which can refer patients to independent counsellors – ask your doctor what is available locally; or
• look on notice boards in your public library, call the CAB to find out what is available locally, and check out ‘Useful contacts’.

Mediation

Many couples agree to call in a third person, called a mediator, to help them to resolve areas of disagreement or dispute. There are big advantages over slugging it out between solicitors – not least the saving in cost – even though many mediators nowadays are qualified solicitors who have taken a special course.

Mediators are impartial. They have no authority to make any decisions about your dispute(s). A mediator will help you to reach a decision for yourselves, resolving your disagreements by negotiation.

Mediation is not the same as counselling

Counselling is about feelings and a mediator may suggest that you see a counsellor if they think you need help in understanding and handling your feelings. Counselling is intended to help couples to stay together.

Mediation accepts that some relationships do break down, and if yours is one of these, the mediator will help you to sort out your practical and legal arrangements for the future.

Mediation can be used at any stage, whether you are trying to stay together or whether you are in the final stages of divorce. We are mentioning it here only because you need to be aware of it. You might decide to try it at a much later stage – for example, to resolve a dispute over financial matters – and that would be quite in order.

Mediation sessions are private and quite informal. You will normally need between two and four sessions of about 90 minutes each.

Mediation can help you to sort out:

• arrangements for your children;
• dividing up your property;
• financial details;

and any other practical issues associated with your separation or divorce.

If mediation is being used to discuss arrangements for your children, the mediator will expect you to consider the children’s needs and wishes first.

If mediation is being used to deal with property or financial arrangements, the mediator will ask you both to fill in a form giving full details of your property, loans, debts, income, outgoings and any other relevant information. This form is available at www.courtservice. gov.uk/cms/media/forme.pdf. You will probably find it helpful in sorting out your finances, whether or not you decide to go for mediation.

This factual information may be used later in court to help with any financial arrangements; it is, however, the only information that will be passed on. Anything that either of you says during the sessions is privileged and the mediator will not divulge it unless you both give your permission, with one important exception – if the mediator considers that any child or adult has suffered significant harm or is at risk of being harmed, then the mediator will inform the police or social services.

All mediators are specially qualified. As we said above, many are solicitors who have also taken a further course in mediation. Others are members of the UK College of Family Mediators or the Family Mediators’ Association (see ‘Useful contacts’, p 168).

There is no fixed fee for mediation: different mediators charge different rates. If you are on a low income, you may not have to pay anything.

Mediators have a duty to ensure that all sessions are conducted fairly and that both parties feel safe. Mediators are impartial. They are not adjudicators and they are not advocates either – they do not judge and they do not take sides.

We repeat: mediators have no authority to make any decisions regarding your disputes. Their job is to help you to resolve your disagreements yourselves, by negotiation.

When is mediation not the answer?

• When someone is less than frank and honest. For mediation to work successfully, both spouses must be frank with each other.
• When someone feels unsafe or intimidated. Neither spouse should feel threatened or pressurised by the other.
• When the dispute is something you cannot be expected to resolve for yourselves.

For these reasons, mediation is not the answer:

• if either of you lacks the mental capacity to take part in mediation;
• where there is violent behaviour on the part of one (or both) of you;
• where emergency proceedings have to be taken, such as child protection issues or violence within the family;
• where there is a court order banning one spouse from having contact with the other;
• in financial disputes where either of you is bankrupt;
• in certain matters where only the court can decide, such as in cases involving the paternity of a child;
• where marital therapy or counselling would be more helpful.

On the other hand, there is a lot to be said for mediation:

• it helps you to find a solution which both spouses feel is fair. There will not be any winner or loser. Instead, mediation is intended to help you to reach sensible, practical arrangements;
• it can help to reduce animosity and misunderstandings between the two spouses;
• it improves communication between spouses, which is particularly important if you have children.

2
Is separation an option
for you?

Reasons for separating

Suppose you and your spouse have decided you can no longer bear to live together. Here are some possible reasons for finding life as a couple intolerable:

• you are miserable together;
• you want time out in the hope of saving your marriage;
• someone is at risk if you stay together (if this is you, turn at once to Chapter 8);
• you have decided that you may want a divorce on the grounds of separation (see below) rather than for one of the other reasons, or, as the court calls them, ‘facts’.

‘Facts’ for divorce

To qualify for a divorce, you must show that the marriage has broken down irretrievably....

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Disclaimer
• Welcome
• Buzzwords
• Frequently Asked Questions (FAQs)
• 1: Can We Work It Out?
• 2: Is Separation an Option for You?
• What Should a Separation Agreement Cover?
• 4: Separation and Children
• 5: Your Separation Questionnaire
• 6: Draft Separation Agreement
• 7: You and Your Solicitor
• 8: Emergencies: Domestic Violence
• 9: Emergencies: Going to Court
• 10: Legal Help and Public Funding
• 11: Divorce: How Do I Get One?
• 12: Filling in the Petition
• 13: Filling in the Statement of Arrangements for Children
• 14: If You Are the Respondent
• 15: The Next Stages
• 16: Dividing the Spoils
• 17: The Family Home: Safeguarding Your Rights
• 18: Managing Stress
• 19: Children
• 20: Some Real Life ‘Behaviour ’ Particulars
• Useful Forms
• Sample Letters
• Useful Contacts
• Notes