Back in January we reported here about a survey carried out by the consumer magazine Which?, that found that only 15% of divorcing couples include pensions in their financial settlement, and that 58% of the people they surveyed said pensions weren’t even discussed within their divorce proceedings.

Now another survey has made similar worrying findings, suggesting that many people are missing out on their pension entitlement when they get divorced.

The survey, carried out on behalf of the insurance company Aviva, found that one in six divorced people said they did not realise their pension could be affected by splitting up, and that more than a third said they made no claim on their former partner’s pension.

The survey, of more than 1,000 divorced people, also found that 8% of divorcees do not have their own pension savings, having been relying on their partner to finance their retirement. As a result of divorce, 19% say they will be, or are, significantly worse off in retirement.

Commenting upon the survey, the head of savings and retirement at Aviva said:

“It’s critical that, as part of the separation process, couples take time to think about and discuss one of their single most valuable assets – their pension.

“It’s common that one party will have significant pension provision, and the other party may have little or none. Clearly, this could be a relevant factor in any divorce.”

Invisible asset

So why are people missing out on their pension entitlement?

Perhaps the single biggest reason is that a pension is an ‘invisible asset’. Unlike the former matrimonial home, the existence and value of which is obvious, pensions cannot be seen. They exist only ‘on paper’, and often one spouse will have little, or even no, knowledge of the other spouse’s pension.

Another problem with pensions is that people often have no idea of their true value, often underestimating their worth by a huge amount. But pensions can be very valuable, and can easily be worth hundreds of thousands of pounds, making them usually the second most valuable asset on divorce, after the matrimonial home.

So as we stated in our previous post, it is absolutely essential that you take proper expert legal and financial advice upon your possible entitlement to a share of your spouse’s pension. We can find you an expert lawyer that works with you on our digital platform, and can also find you a financial expert to advise you. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As readers may be aware, a new system of no-fault divorce was introduced in England and Wales on the 6th of April.

The system does away with the need to prove that the marriage has irretrievably broken down. This means that it will no longer be necessary to blame the other party for the breakdown, by showing that they had committed adultery or behaved unreasonably.

The Courts Service has revealed that in the week following the change it received 3,000 divorce applications, which is about a 50% rise on the weekly average.

The rise in the number of divorce applications was in fact expected, especially as there was a huge drop in the number of divorces being issued in the months leading up to the change, as we reported here recently.

The general consensus amongst experts is that this surge is not part of a permanent increase in the divorce rate. There had been fears in some quarters that, in making divorce easier, the new law would lead to a long-term increase in the number of divorces, but most experts believe that this will not happen.

Indeed, the surge can be interpreted as suggesting that there may be enthusiasm for the new law, with many people waiting for it to come in so that they could divorce without the need to blame their spouse for the breakdown of the marriage.

If so, then this is a hopeful sign that people really do want to divorce without creating unnecessary animosity. This, in turn, will hopefully mean that more couples will be able to sort out arrangements for children and finances by agreement, rather than having to go to court.

The other thing that potential users of the new system will want to know is how well it is working, particularly given the number of people currently using it. After all, the new system, which is entirely online, involves quite different processes from the old one, and any completely new system is likely to suffer from teething problems.

However, the Courts Service report that things are going well. A spokesperson is quoted as saying: “Our new digital system is designed to be robust and create a better experience for users. It has been running smoothly since it launched on 6 April.”

All of which seems to be good news. It should however be pointed out that the new system only deals with the divorce itself. The law in relation to sorting out arrangements for children and finances has not changed.

So if you are going through a divorce it is still strongly recommended that you seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

The new no-fault divorce system means that for many people getting divorced will now be easier, as it will no longer be necessary for the applicant to prove that their spouse is responsible for the breakdown of the marriage.

But this has led to warnings in some quarters that easier divorce can mean that respondents may be rushed into agreeing an unfavourable divorce settlement. Is this really the case?

It is true that under the old system the respondent could seek to slow down the divorce by defending it, and that this option is no longer available, as a divorce under the new system cannot be defended.

But this does not mean that respondents will be rushed into settlements.

For a start the new system has an in-built twenty-week ‘period of reflection’ between the start of the proceedings and the application for the conditional divorce order (the equivalent of the decree nisi under the old system). This means that, with the six-week period between the conditional order and the final order, divorces now will take a minimum of six months, which is actually longer than many divorces took under the old system.

And in addition there is actually a way in which respondents can seek to delay the divorce until the financial settlement has been dealt with.

Before we explain this we should explain that it is not a requirement that a financial settlement must be reached before a divorce is finalised. It is quite possible for the settlement to be dealt with after the divorce.

However, this is not generally recommended, because it is possible that getting divorced can adversely affect a person’s financial position. For example, it could mean them losing a potential benefit under their spouse’s pension.

A pension scheme will often provide that if the pension holder dies then their spouse should benefit from the pension, but that benefit will obviously be lost if they are no longer the pension holder’s spouse.

The way that the respondent can seek to delay the divorce is by applying to the court for it not to allow the divorce to be made final until it has considered their financial position as it will be after the divorce.

The court will then not make the divorce order final unless it is satisfied either that the applicant should not be required to make any financial provision for the respondent, or that the financial provision made by the applicant for the respondent is reasonable and fair, or the best that can be made in the circumstances.

In short, the new divorce system should not mean that respondents are rushed into unfavourable settlements. In most cases they should have time to sort out financial arrangements, and if there is a risk that they may be seriously disadvantaged, they can ask the court to delay the divorce until finances have been resolved.

Time may not be of the essence when it comes to financial settlements, but if you have received a divorce application issued by your spouse, you should still seek the advice of an expert family lawyer, at the earliest possible stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is not unusual for couples, especially those with substantial means, to enter into a ‘marital agreement’, setting out what should happen to their finances in the event that they should divorce. Such agreements may be ‘pre-nuptial’, i.e. entered into before the marriage, or ‘post-nuptial’, i.e. entered into after the marriage.

But such agreements do not bind the courts of England and Wales. When a divorce occurs the court may order whatever financial settlement it considers appropriate, and this may not be the same as the settlement set out in the agreement.

So what is the legal status of such agreements, and what effect, if any, do they have on the outcome of a financial remedies application on divorce?

Last week a High Court judge considered these questions, and also the associated question of how the court should view an agreement that was reached, but not signed by the wife. His judgment, which set out the law, is instructive for anyone having, or considering entering into, a marital agreement.

So what is the law?

The first thing to say is that the court essentially treats pre- and post- nuptial agreements the same. The only difference relates to the circumstances surrounding the making of the agreement.

In both cases the parties must make full disclosure of their means and take legal advice before entering into the agreement. However, in the case of pre-nuptial agreements there is an extra requirement: that the agreement is entered into a reasonable time before the marriage (say, 28 days), to reduce the possibility of one party being pressured into signing the agreement.

If an agreement has been made then the court hearing any subsequent financial remedies application will take the agreement into account when deciding the application, and will give effect to it provided that:

1. It was been freely entered into by both parties, without any undue pressure being put on them;

2. Each party fully understood the implications of the agreement; and

3. It would not be unfair to the parties to hold them to the agreement, in the light of the circumstances prevailing when the court makes its decision.

The effect of this is that the court is likely to give effect to the agreement in most cases.

As mentioned, the agreement must be in the form of a written document, signed by both parties. But what if one party does not sign it? Should the court still give effect to it?

This was the particular situation with which the judge was faced. The parties had agreed a post-nuptial settlement, after taking legal advice. The settlement was set out in a written agreement, but in the event the wife did not sign it. Should the judge hearing the financial remedies claim give effect to it?

The agreement specifically stated that it would only come into effect when both parties had signed it, and its preamble contained the usual notice warning the parties not to sign it unless they intended to be bound by its terms.

In these circumstances the judge held that the wife should not be bound by the agreement. However, the fact that she had agreed to its terms was a matter that he should take into account. Accordingly, he made an order that was similar to, although not the same as, the terms of the agreement.

If you are considering entering into a pre- or post- nuptial agreement then, as indicated above, you will need the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As readers may well be aware, we are about to get a new, no-fault, divorce system in England and Wales. And the details of the changeover from the old system to the new one are becoming clear.

Firstly, the Courts Service has confirmed that it will be effectively closing down the current divorce system on Thursday 31st of March. After that date it will not accept any new divorce petitions (whether online or on paper), save in urgent cases where the issue of the divorce petition is time critical, such as when a freezing injunction is needed to prevent the other party from disposing of assets.

Meanwhile, the Government has passed regulations confirming that the new divorce system will come into force on Wednesday 6th of April (whilst we had previously been told that the new system would come into operation on that date, up until now there had been no official confirmation).

But why the delay between closing the old system and bringing in the new? After all, there will be three working days when, save in urgent situations, it will not be possible to apply for a divorce – an exceptional situation.

The Courts Service has explained the delay by saying that it needs the time to prepare the new system, in particular the online portal via which divorces are issued and processed. Exactly why an online portal cannot be switched from one system to another overnight, or at least over a weekend, has not been explained.

Whatever, hopefully all of this will mean that there will be a smooth transition from the old system to the new.

And what about ‘old system’ divorces that have not been finalised by the 31st of March? Here, the Courts Service have reassured customers that Decree Nisi and Decree Absolute applications that have been issued will be saved, and will remain available on the service.

Lastly, it is important to note that these changes only apply to the divorce itself. The law and procedure in relation to financial remedies on divorce will remain the same under the new divorce system, as will the law and procedure used to resolve disputes between separating parents over arrangements for their children.

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On the 6th of April we will see the biggest change to divorce law for at least fifty years, with the introduction of a ‘no-fault’ system.

But what exactly will this mean for anyone wishing to take divorce proceedings? How will things be different from the old system?

No blame, no waiting

The first and obvious change is that it will no longer be necessary to blame your spouse for the breakdown of the marriage, by showing that they had committed adultery or behaved unreasonably.

All that will be needed is to file a statement with the court saying that the marriage has irretrievably broken down. The court must accept the statement as proof that the marriage has broken down irretrievably.

And hopefully this will mean that without the unnecessary animosity caused by attributing blame there will be a better chance of the parties sorting out arrangements for children and finances by agreement.

It will also of course not be necessary to wait until you have been separated for at least two years, before you can divorce without the need to attribute blame.

Joint applications

It is often the case that both parties want a divorce, but under the present system only one party can issue divorce proceedings.

This will also change. Under the new system a divorce application can be made jointly by both parties, who will also file a joint statement that the marriage has broken down irretrievably.

Again, this will hopefully mean more amicable divorces.

The end of defended divorce

Until now it has always been possible for the party in receipt of divorce proceedings to defend the divorce. Defending divorce proceedings will inevitably increase the costs, and mean that the divorce will take longer. It is even possible that the court could refuse to allow the divorce.

Thankfully, all of this will also change. Under the new system it will simply be impossible to defend divorce proceedings.

Period for reflection

But the new system will include a mechanism to ensure that a divorce will only be granted if the party or parties applying for it are sure that they want the divorce to go through.

Under the new system they can only apply for a conditional divorce order (the equivalent of the decree nisi under the present system), confirming that they want the divorce to continue, after a twenty week ‘period for reflection’ has elapsed since the date that the divorce was started.

And a further six weeks must elapse after the conditional order, before the final divorce order (the equivalent of the present decree absolute) can be made.

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The Office for National Statistics (‘ONS’) has published its latest figures for divorces in England and Wales, for the year 2020, and one headline stands out.

The headline is that the number of divorces granted fell by 4.5%, compared to the previous year. The decrease was amongst opposite-sex couples, with the number of opposite-sex divorces reducing from 107,599 in 2019 to 102,438 in 2020, a fall of 4.8%.

The reasons behind the decrease are not yet clear, but it is believed that the pandemic has been the main factor. The ONS point out that the Ministry of Justice has previously reported that family court activities were affected by the pandemic during 2020, including the temporary suspension of operations by some courts for a period of time. They say that this may have impacted the number and timeliness of completed divorces in 2020, but admit that it is difficult to know the extent of the impact.

Another theory is that the pandemic simply caused fewer couples to issue divorce proceedings, deciding to ‘stick together’, at least until the pandemic is over. If this is the case, then obviously we may see a post-pandemic surge in divorces.

As to same-sex divorces, the figures show a different story. In 2020, there were 1,154 divorces among same-sex couples, increasing by 40.4% from 2019. Of course, this increase is simply due to the fact that same-sex divorce has only been possible since 2015, and it is therefore to be expected that the numbers will be going up, before they eventually stabilise.

The statistics also include other information, apart from just the number of divorces.

They tell us, for example, that unreasonable behaviour was the most common reason for wives petitioning for divorce among opposite-sex couples, and two years’ separation the most common reason for husbands. Of course, when no-fault divorce is introduced in April it will no longer be necessary to give a reason for the breakdown of the marriage.

They also tell us that once again amongst opposite-sex couples wives were responsible for the vast majority of divorces (64,076, against 38,362 granted to husbands).

Lastly, the statistics include figures for the average duration of marriage at the time of divorce. For opposite-sex couples this was 11.9 years, a decrease from 12.4 years in 2019. For same-sex couples it was 4.7 years for female couples and 5.4 years for male couples, although again this is affected by the short time it has been possible for same-sex couples to get divorced.

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The rapid approach of no-fault divorce in April was emphasised last week when new rules were published by the government setting out the process that the new divorce system will follow.

The rules are a reminder of some of the interesting ways in which the new system will differ from the present system, so we thought we would take a quick look.

The rules include the following matters relating to the new divorce system:

1. Firstly, they provide a definition of “disputed proceedings”, to reflect the limited grounds on which it will be possible to dispute divorce proceedings. In particular, it will no longer be possible to defend divorce proceedings, on the basis that the marriage has not irretrievably broken down. An answer to a divorce application may still be filed by the party who receives the application, but only disputing the validity of the marriage, or the jurisdiction of the court to entertain the proceedings.

2. Secondly, the rules introduce a new ‘minimum period’ of 20 weeks for divorce, from the date on which the court issues the application before a party can apply for the conditional divorce order (the equivalent of the present decree nisi). The purpose of this period “is to allow sufficient time to ensure certainty around the intention of divorce, and greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible, and divorce is inevitable.”

3. Thirdly, the rules set out the procedure to be followed on joint applications – the new system allows for the first time both parties to jointly make the divorce application.

4. Lastly, the rules reflect the new terminology that will be used under the new system. For example, ‘Petition’ will become ‘Application’, ‘Petitioner’ will become ‘Applicant’, ‘Decree Nisi’ will become ‘Conditional Order’, and ‘Decree Absolute’ will become ‘Final Order’.

These new rules will obviously come into force on the same day as the new divorce law, which is currently fixed for the 6th of April. Hopefully, they will ensure that the new system operates smoothly.

For a discussion upon whether you should wait for the new system before issuing divorce proceedings, see this post.

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So-called ‘Divorce Day’, the first working Monday of the New Year, is with us again next week.

Divorce Day is supposed to be busiest day of the year for divorce lawyers, when more people commence divorce proceedings than on any other day. The theory behind it, if one can call it that, is that that a fractious family Christmas was the last straw for their marriages. Or perhaps they have just decided that the New Year is the time to make a new start.

There is much debate as to whether Divorce Day is a real phenomenon, or just something created by the popular media.

But if you are one of the people who has decided that you want a divorce that debate is, of course, academic.

What may be more important on this particular Divorce Day is whether you proceed now, or wait until the new no-fault divorce system comes into force in April, as we mentioned in a post here last week.

As we explained in that post, no-fault divorce is likely in many cases to be much more ‘amicable’ than a divorce under the present system, unless you have already been separated for at least two years. If you haven’t, then under the present system you will only be able to get a divorce by proving that your spouse is responsible for the marriage breakdown, because of their adultery or ‘unreasonable behaviour’.

Attributing blame in this way and making allegations against your spouse may obviously make them less amenable to agreeing other important matters, such as arrangements for children and finances.

It is generally believed that no-fault divorce is a better way. So would it be better to wait?

There are a number of factors to consider, including the following.

Firstly, there is no point in waiting if you have been separated for two years and your spouse consents to a divorce under the present system – the divorce should already be reasonably amicable.

Secondly, you may need to get the divorce under way quickly so that you can make a financial remedies application – in this case it may be best not to wait.

However, if you fear that your spouse may defend the divorce then it would almost certainly be best to wait, as it will not be possible to defend a divorce under the no-fault system.

Lastly, you may want to consider the time that the divorce will take. Under the present system it is possible to get a divorce in as little as three months, whereas under the no-fault system the divorce will take a minimum of six months.

If you are unsure whether to divorce now or wait you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As the old year draws to a close we look forward to the new one, which will usher in arguably the biggest change ever in divorce law in England and Wales.

The civil courts in England and Wales have been handing down divorces for some 160 years. Throughout that time the law that they have applied has been based upon the concept of fault for the breakdown of the marriage. If one party wanted a divorce they usually had to prove that the other party was in some way to blame for the breakdown.

Over the years fault took various forms: adultery, cruelty and other “matrimonial offences”, as they were called. Only in 1969 did the law first allow divorces without fault, but only if the parties had been separated for two years and the respondent to the divorce consented, or five years if they did not.

All that history is going to be swept away next year. Fault will finally become a thing of the past, bringing our divorce laws into the modern age.

From the 6th of April 2022 all that will be required to get a divorce is a statement from one or both of the parties that the marriage has irretrievably broken down. There will be no need to prove irretrievable breakdown – the court will accept the statement as proof that the marriage has broken down irretrievably. And if the statement is by one party only the other party will not have an opportunity to challenge it – defended divorces will also become a thing of the past.

This new system of no-fault divorce has been virtually universally welcomed. It has been understood for many years that attributing blame for the breakdown of a marriage has been an artificial and, in most cases, futile exercise. The need to attribute blame has also brought the law into disrepute, with many people exaggerating, or even inventing, allegations against the other party.

But it is hoped that doing away with this ‘blame game’, as it has been called, will do something more.

Many respondents to divorce proceedings are unsurprisingly aggrieved to be told that the breakdown of the marriage was all their fault, and are unhappy about the allegations that have been made against them. This can naturally make them less amenable when it comes to trying to agree arrangements for children and finances.

The hope is that no-fault divorce will make it more likely that couples will be able to resolve these important matters amicably, rather than having to argue them through the courts.

Whether this will actually happen we will have to wait and see. But one thing is certain: divorce will never be the same again.

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In an important development for anyone contemplating divorce the Government has announced that the new system of no-fault divorce will not now be introduced this autumn, but will instead be delayed until next spring.

In an answer to a parliamentary question upon the implementation of the reform Chris Philp MP explained on behalf of the Government that the original implementation timetable had been ambitious and that the necessary changes to the Courts Service’s online divorce system would not be completed before the end of the year. Accordingly, the reform will not come into force until the 6th of April 2022.

Whilst it is welcome that the reform now has a fixed start-date, the delay obviously has serious implications for those considering commencing divorce proceedings.

To recap, the new system will do away with the need to prove that the marriage has irretrievably broken down, for example due to the other party committing adultery or behaving unreasonably. This removal of blame from the divorce process has been widely welcomed.

Instead, all that will be needed is for one or both of the parties to file a document with the court simply stating that the marriage has broken down irretrievably – the court will accept this as proof of irretrievable breakdown.

A minimum period of 20 weeks will then have to elapse before the court can make a conditional divorce order, and a further six weeks must pass before the court can make a final divorce order. No-fault divorces will therefore take a minimum of 26 weeks, longer than a quick divorce can take at present.

Obviously, those wanting to divorce without having to blame the other party for the breakdown of the marriage may now have to wait longer to get divorced, if they have not been separated for two years (under the present system you can divorce after two years separation, if the other party consents).

On the other hand, those who are content to use the present system will obviously have more time to do so, perhaps enabling them to get a divorce more quickly than under the new system.

If you are contemplating divorce you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Divorce of course arises from past events that led to the breakdown of the marriage. But that does not mean that the divorce itself must be all about what has happened in the past.  

All too often divorcing couples become mired in arguments about the past, but all that achieves is more animosity, more delay and more legal costs.

Of course, it can be difficult to put the past behind you, especially when those events had such a significant effect upon your life. The temptation to raise past events in divorce proceedings can be overwhelming.

And it doesn’t help when one sees divorcing celebrities dragging up the lurid history of their marriage in the popular media every day. The idea that this is ‘normal’ behaviour by divorcing couples is a trap that is all too easy to fall into.

And many people going through divorce think that the past behaviour of their spouse will be of crucial interest to the court in determining what orders it should make.

But, save where there has been domestic abuse, the court is largely not concerned with past behaviour. The real concern of the court is what should happen in the future.

Let us look at the three main things involved in divorce proceedings: dissolving the marriage, sorting out arrangements for children, and sorting out finances.

It is true that at present if a person wants to get divorced before they have been separated for two years they will need to prove that their spouse has committed adultery or behaved unreasonably. But the court isn’t really concerned about these things, only that the marriage has irretrievably broken down. And findings of adultery or unreasonable behaviour will usually have no bearing whatsoever upon other matters, such as children and finances.

And when no-fault divorce comes into force, now expected to be next year, then it will not be necessary at all to show why the marriage broke down.

Arrangements for children are all about the future: deciding how best the children should spend the rest of their childhood. Of course, past events may be relevant to that decision, but in the vast majority of cases they do not change the simple position that children should continue to have as full a relationship as possible with both parents.

Lastly, sorting out finances on divorce is in most cases driven by the future financial needs of each party, not about what has happened in the past. In particular, bad past behaviour by one party will be of no relevance to the financial settlement, save in the most extreme of cases.

You can’t change the past, but you can change the future. Divorce is not about what has gone before, but about making a new start, and ensuring you have the best arrangements in place for that future, for yourself, and especially for your children.

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