Head of Family Law at Howes Percival, Justine Flack provides an update on no fault divorce; when it becomes law, how it will change things and what to think about in the meantime.
Well the answer to that question is probably 'no'! There may never really be a good time and divorce is frightening, emotionally draining and an expense no one wants. I long ago accepted that my career would involve dealing with people who really didn't want me in their lives.
It is however worth thinking about timing a little bit more, both specifically and generally.
On 6th April 2022 no fault divorce becomes law. Long overdue in my opinion but it will result in some delays to the process so you may wish to think about issuing proceedings now. Your solicitor will advise you.
'We're staying together for the sake of the children' - often said but it runs the risk of two unhappy people staying together for longer than they should, making one another even more unhappy and leaving their children in the middle of a potentially toxic atmosphere. It could cause more harm to children who generally do better with parents who are separate but happy. Children are also resilient and adaptable; it is usually about how they are given information and the cooperation of parents regarding their arrangements which has the greatest impact.
Abuse - if you're in an abusive relationship, whether that's physical abuse or emotional abuse, it's unlikely to be healthy for it to continue. You are at risk but so too potentially are your children. Not only may they get caught up in a physical altercation but they may be living in fear and feeling anxious about home life. Furthermore, you will teach them about behaviour that is acceptable in a relationship. It is probably better to get out as soon as you can.
'I won't manage financially' - an understandable fear. It is true that divorce and separation often brings about some adjustment to lifestyle as we have to provide for two households from the resources which previously supported one. However, in my experience it is, somehow, always 'doable'. Start off by trying to understand your financial situation; what assets are there, what debts, what is the income and expenditure in the household. Then seek advice from a matrimonial specialist. They should consider the short-term and long-term situation and encourage you to think about what you want in the future. You may also need early financial advice.
'I don't understand the process and he/she won't cooperate with it' - the process is daunting but that shouldn't stop you. Instruct a family solicitor who will explain it and manage you through it; they will take responsibility for the process. They should also give you options about how it may work - collaborative law, mediation, roundtable meeting or negotiation through solicitors. Court is often a last resort although sometimes necessary where someone isn't cooperating or you are so far apart in your approach that compromises aren't possible. In my experience, few cases run to a fully contested final hearing and having had orders made against a party who refused to engage, there will be finality.
But pausing a while may sometimes be wise. Announcing it's over just before a major family wedding or celebration or as you arrive at your luxury hotel for a two-week holiday will not be the best time to pick. Remember that your partner may not see this coming, they will be shocked, upset, hurt, angry and emotionally way behind you. Try to be sensitive. This may also be important as you move forwards in the process and resolve financial issues and arrangements for the children. It is better that you work together so some goodwill from the start and thinking carefully how you handle the situation may pay dividends and result in a better outcome and a less costly process.
When I think of timing I am always reminded of the client whose husband had taken her away to Paris for a weekend away, just the two of them and to celebrate Valentine's Day. He'd booked a lovely restaurant for dinner the evening of 14th February and she was touched by his thoughtfulness in planning this trip. That was until he decided, over coffee, to inform her that he had decided that the marriage was over and when they got home he was moving out. I'm not sure that being in the city of love and taking her to a swanky restaurant softened the blow!
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