Irreconcilable Differences?

Several clients of mine have recently spoken to me about divorcing on the basis of “irreconcilable differences” and even one of my colleagues mentioned the concept (his area is not family law).

I was forced to explain to all that the only ground for divorce in England and Wales is the irretrievable breakdown of the marriage. I also explained that this ground must be supported by one of several “facts” – behaviour, adultery, 2 years separation with the other’s consent, desertion or 5 years separation.

Whilst going through the explanations and answering the questions that ensued, it stuck me that their misconception about the divorce process and the ground for divorce in this country had almost certainly come from watching US dramas/reading articles about celebrity divorces in the papers – almost all of which mention one party “citing irreconcilable differences”. Fine if you are divorcing in the US.

Of course no-one should or would have reason to know the ins and outs of the divorce process in this country unless they were practising family law or had been through the process before but it did make me wonder where people seek out information when they are faced with separation or divorce – especially given that these clients were adamant that the information was correct and that their planned course of action was the right one.

At such an important and emotionally charged time in their lives, are clients prepared to avoid UK solicitors at all costs and instead rely on pieces of information picked up from friends, TV, the media etc.

I can only say what I said when faced with those clients and my colleague – you wouldn’t have a look around online to obtain bits of information and then have a go at extracting a tooth, plumbing in a bathroom or fixing a car – at the very least you would obtain some expert advice.

It is perhaps our fault as a profession that we have not appeared approachable enough, have not educated sufficiently and have not done enough to change the perception that people have about the costs involved.

That is surely now coming to an end with the entrance of ABS and certainly costs and accessibility are becoming a point of difference between firms.

Fixed fee options, free initial consultations, DIY divorce packs, factsheets etc. are all services we have developed to educate people and enable them to regain control of costs and action at a time when most feel that they are spiralling out of control.

I believe that many in the profession are doing what they can to make access to information and advice easier and less intimidating for clients but, for things to get better, there must be some change of culture… some general consensus that it is better to obtain expert advice before taking action and that Solicitors are not all smoke and mirrors and actually have some expert knowledge and value to give.

Without that change, I fear that people will continue to shy away from seeing a Solicitor and take action on the basis of the piecemeal (often incorrect) information that they pick up or are given by well-meaning friends – lessons might be learnt when things go wrong and legal advice and action is needed to right it but that is far too late and can be more costly in the long run.

So…. don’t struggle alone or worry about what you are or are not doing….contact Solicitors’ firms and I am prepared to bet that the majority will offer free initial consultations or a fixed fee initial appointment….get the correct legal advice before taking action and ask solicitors whether they do fixed fee services….some already do and in the long run I suspect that this will become more common.

When is a marriage not a marriage?

An odd question on the face of it but one of increasing importance in a world where more and more people live “international” lives, crossing jurisdictions for business and pleasure and residing in different countries.

A recent case in the English Courts brought this issue once again into focus. This featured parties who were both Moroccan by descent, the wife born in England and always residing here, the husband born in Morocco and moving to England when he was 7 with dual citizenship.

The parties went through a Moroccan civil ceremony in the Moroccan Consulate in London. There were witnesses and a formal marriage certificate, two wedding parties and a honeymoon. The ceremony was conducted by a notary and the relationship lasted some 7 years, the parties having a son and separating in 2009 – although staying under the same roof.

The wife sought to issue Divorce proceedings in England but the husband, just over a month earlier and without the wife’s knowledge, had petitioned for Divorce in Morocco.

A Divorce was then finalised in Morocco with minimal financial provision for the wife. The wife’s application before the Court in England, therefore, was for financial provision following the foreign divorce.

For the purposes of marriage, the Consulate constituted English soil and the “marriage” therefore took place in England and was governed by English law. It was perfectly open to the husband to petition for Divorce in Morocco and there is legislation that permits parties to issue applications for financial relief in England following overseas divorce. In order to do so, however, there must have been a “marriage” capable of recognition in England and this became the issue for the Court.

The husband argued that her application must fail because a) there was no marriage recognised in England and b) the Moroccan divorce should not be recognised in England (I’m not dealing with (b) in this piece)

The Judge considered the ceremony, which was wholly non-compliant with the Marriage Act, and the length of the parties’ cohabitation. He found that the ceremony did not give rise to a valid marriage and that the fact that the parties had cohabited together for some 7 years was not enough to give rise to a presumption of a valid marriage and he declared it a “non-marriage”.

But…could this nevertheless amount to a “marriage” for the purposes of applying for financial relief (the wife’s application)? The Court held that despite both parties intending the marriage to have legal consequences there needed to be a valid marriage, or at the least a void marriage (i.e. one that is capable of founding a decree of nullity) for such an application to be made.

And so, the wife could make no financial claim against her ex-husband in England and she was stuck with the “very modest” financial provision awarded to her by the Moroccan Courts, the English courts would not interfere with the flat held in the husband’s sole name (net value of £300,000).

The lessons are there to be learnt….marriage ceremonies should comply with the provisions of the marriage act – pay careful attention to the venue and the provisions as regards who undertakes the ceremony – if no valid/void marriage is created then parties may be left in difficulty on separation, particularly when it comes to dealing with financial affairs.

Divorce?...What’s the rush?

When couples separate often the last thing they want to think about is Divorce.  Their focus is on sorting out the financial issues or arrangements for the children, which are often more important to them.

Clients often say to me that really the "Divorce" element of their separation isn't that important to them immediately and some even would say that they don't like the idea of such finality when they have just separated (despite intending to remain apart and clear about their wish to separate).

If agreement about financial matters can be reached then issuing proceedings is not immediately necessary and parties may choose to delay issuing a Divorce Petition and enter into a “Separation Agreement”. The purpose of a Separation Agreement is to set out the financial arrangements clearly and in such a way that it will be upheld by the Court later on.

Most commonly the intention of parties dealing with a break-up in this way will be to issue Divorce proceedings and apply to the Court for the terms of their agreement to be incorporated into a legally binding Court Order at a later date – usually after they have been apart for a period of 2 years. That allows time for emotions to be worked through, people to move on and for the Divorce then to be dealt with amicably and at a time when the parties feel more ready to deal with it.

Separation Agreements cannot be used where there is dispute between the parties as to how assets are to be divided. If Mediation cannot resolve the dispute or it cannot be negotiated then Court proceedings might be needed to determine matters. Financial proceedings cannot be brought without Divorce proceedings first being issued and, in some circumstances therefore, an immediate Divorce is necessary.

The same goes for cases in which there is some urgent need for the Court to intervene, perhaps where assets are being dissipated.

There are emotional benefits to dealing with separation in this way but Separation Agreements are not a “quick fix”. Separation Agreements are not legally binding and will require the Court's approval (which may only be given once Divorce proceedings have been issued and the Decree Nisi granted) to become so. 

They must be approached and prepared properly to hold weight with the Court and ensure a fair outcome and it is important that both parties provide detailed financial information to one another and have the opportunity of taking independent legal advice.

So... consider it as an option and take advice about whether it might be possible in your case.