If your marriage breaks down, separating your finances with your ex-partner can be very challenging but it is often key to helping you move forwards. Whatever settlement you decide can affect you for years to come so it’s important to get it right.
Grounds for Divorce
The person who starts the divorce process is known as the ‘petitioner’ or “applicant for the divorce” and the other party is the ‘respondent’. The single ground for divorce is the irretrievable breakdown of the marriage. The petitioner must provide evidence to the court based on one or more of five facts namely:
Desertion (for a minimum of 2 years)
Two years separation (with consent of Respondent)
Five years separation (no consent required)
Unreasonable behaviour is one of the most common facts used for divorce and can cover a range of complaints such as lack of financial or emotional support. Adultery is also commonly cited. When divorce petitions are presented based on the other three facts then the timescale for divorce can be much longer simply at least two years must elapse following separation.
Does adultery affect the divorce settlement?
When people file for divorce citing the fact of adultery or unreasonable behaviour, they can often feel that as the ‘injured party’ they should be entitled to a more favourable financial settlement. However the cases decided by the courts over the last forty years show that that is rarely going to affect the settlement.
In nearly all cases, the reasons for the divorce are not relevant when deciding how the marital assets should be divided. The court doesn’t look to apportion blame or penalise either party except in very unusual circumstances.
Section 25 in The Matrimonial Causes Act 1973 sets out the factors that a court uses in deciding where fairness lies in how the couple’s assets should be dealt with and what the terms of their financial settlement should be. For example, respective earnings or earning abilities, ages, standard of living, financial needs, needs of children, duration of the marriage etc.
So, it is highly unlikely the court will take adultery into account when making a decision regarding the financial settlement.
Resolution and other campaigners have been actively working for changes in the current divorce law. As the fact that behaviour isn’t a deciding factor when making a financial settlement you would think that spouses would be discouraged from contesting divorce applications of the grounds of adultery or unreasonable behaviour but inevitably there is reluctance to feel “blamed” in a court application. So, Resolution and others are campaigning for a ‘No Fault Divorce’, for more information please read our blog on this matter.
Will my divorce settlement be affected if my partner has started a new relationship?
If you remarry without having reached a financial settlement with your former spouse, and if you are the respondent in the divorce you automatically lose the right to make any financial claim against the petitioner. It is always wise to take legal advice before remarriage where the court has not made a final financial order. The petitioner, however is likely to have preserved their claims in the petition and therefore still have the same right to make a financial claim against the respondent as before. It is of course always wise to take legal advice before remarriage where the court has not made a final financial order.
New relationships can affect financial settlements where spousal maintenance is concerned. If at the time of negotiations either partner is cohabiting with a new partner any claim for spousal maintenance may involve additional considerations. It may be that the cohabitee contributes financially to the claiming spouse’s outgoings, meaning they will need less income from the other spouse. Or, alternatively if the paying spouse has a cohabitee who contributes to their outgoings, thus freeing up income to meet maintenance claims, this can be considered as part of the negotiations.
If you are paying spousal maintenance to your former spouse and they later remarry, spousal maintenance ends. However, if they cohabit with their new partner you will still need to pay maintenance but should seek advice on a potential variation if circumstances change. If you are receiving maintenance from your former spouse, you should normally continue to receive it after they remarry.
If you have any questions about your own separation or divorce after reading this blog, then please contact a solicitor who can advise you specifically about your circumstances. In the mediation process clients can be given information but not advice. For help on how to find a solicitor please see this page of our website.
Or if you want more information about how family mediation can help you resolve issues like the ones detailed in this blog please contact us via email on firstname.lastname@example.org or call us 01670 528441.