Five things you should know about getting divorced.
1. Adultery doesn’t mean that you’ll receive a better settlement.
People often assume that their partner’s conduct, and in particular if their partner has had an affair, will have an impact on the financial settlement. In actual fact, that is rarely the case. The court is not generally interested in who is at fault for the divorce. Their role is to find out what resources the parties own, individually and jointly, and then divide the resources as fairly as possible.
For a party’s conduct to impact the financial position, there is an extremely high bar, which in most cases won’t be met.
2. Adultery is only grounds for divorce where it’s committed between people of the opposite sex.
While it may be difficult to fathom in this day and age, the definition of adultery for the purposes of divorce is still “voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is married to someone else”.
It follows that affairs with members of the same sex “do not count” as a ground for divorce. If you’re wife leaves you for another woman, or your husband for another man, you won’t be able to divorce them on the grounds of adultery. However, it would still be open for you to petition for divorce based on your partner’s “unreasonable behaviour” and their infidelity with a member of the same sex could reasonably be relied upon to show that you cannot be reasonably expected to live with them.
3. Divorce itself is not a complex process.
Petitioning for divorce and ultimately obtaining a “decree absolute” that ends your marriage is a relatively straight forward process, that involves sending in the right papers to court and persuading the court that you meet one of the grounds for dissolving your marriage.
In the vast majority of cases, there is no need to attend court.
However, it is vitally important that the papers are completed absolutely accurately and correctly, and that they demonstrate that one of the grounds for divorce has been met. Failure to make out the grounds, or even something as seemingly trivial as a name being mis-typed, may result in the petition being rejected and sent for correction. Although the petition can often be amended to correct the default, this can lead to delay and sometimes additional cost – all at a time when you really just want to get things over with.
Where there are contested financial matters, these can sometimes take longer to resolve. It is possible to obtain the “decree absolute”, which ends your marriage, before any financial disputes are resolved. However, in many cases – and for a variety of reasons – it is advisable to wait until the financial settlement is in place before applying for the decree absolute.
4. “No fault” divorces are already possible.
You may be aware of discussions in the legal community and the media about the potential benefits of “no fault” divorces. Divorce is almost always an emotional and difficult time for the divorcing couple, and adding “fault-based allegations” such as adultery or unreasonable behaviour can lead to further animosity and dispute.
No fault divorce is already available in two circumstances. Firstly, if both parties agree, then two years separation is a ground for divorce. If one of the party does not wish to end the marriage, then the wait is somewhat longer – five years separation.
The reality is that often one or both parties, recognising the inevitability of the marital breakdown, want to progress their divorce before two years (or five years), and at the moment the only way to do that is for one of the parties to allege fault against the other. It is a common view amongst divorce lawyers that non-fault based divorce, without having to wait, would avoid difficulties experienced in some fault-based divorces.
5. There is no formula for deciding how assets are divided
Many people think that there are hard and fast “rules” that their lawyers will be able to download to them and give a precise account of how resources will be divided.
That isn’t the case. Instead, the courts have provided some “principles” and also some “rules of thumb” when it comes to determine what will happen to the parties’ property and how it will be divided.
There is significant discretion from the courts to determine the division of the resources. The division is based on what each party, and any children, need to live on and the principle of division of the assets. To achieve a fair result, the court considers all of the competing factors and circumstances.