Article written by Aishat Balogun, Solicitor, Family department
Going through the process of divorce can be a daunting and stressful part of an individual’s life and – dare we say it – a lonely one too. According to the Office for National Statistics, around 42% of marriages in England and Wales end in divorce. In this article, we look at ten pitfalls and mistakes to avoid when divorcing your partner.
1) Failing to get a Financial Order
Some people attempt to start divorce proceedings online without legal representation but do not resolve their finances. Obtaining your Decree Absolute does not sever financial ties between you and ex-partner. You need a Financial Order to prevent future financial claims being made against you, even if you have reached an agreement with your soon-to-be ex-partner or even if there are no finances to divide. Preparing a Financial Order can be technical so we would recommend they are drafted by a specialist family law solicitor.
2) Neglecting financial planning
It’s easy to state your desire to claim a specific percentage of a property or asset but we would strongly suggest working with a solicitor and a financial planner to ascertain what that percentage equates to.
3) Forgetting about the tax implications
There can be tax implications following a divorce, particularly if there are delays. Usually, if one spouse transfers their interest in the family home to the other spouse or if the family home is sold and divided between the spouses, there is no Capital Gains Tax payable based on the “Principle Private Residence Relief”. However, the spouse who leaves the family home could end up with Capital Gains Tax liability if the transfer or sale takes place after 9 months of them moving out. There are also potential tax implications in relation to other assets. Please speak to a tax accountant regarding your circumstances and obtain tax advice.
4) Re-marrying before financial arrangements have been resolved
It is common for new relationships to cause complications with ongoing divorce proceedings. If you marry without obtaining a Financial Order, you may lose your right to apply for one. By doing so, you could lose your rights under the Matrimonial Clauses Act 1973.
5) Thinking nothing can be done
It is commonly known for clients undertaking divorce proceedings to face somebody that is less willing to collaborate. However, the Court are used to dealing with people who are not co-operating. Ignoring proceedings or failing to disclose financial information could have serious legal and financial ramifications for the person. Very often, something can be done, and the Court can take steps to ensure compliance with orders.
6) Discussing the divorce with the children
Firstly, the children need to know they can have a relationship with both parents. We would strongly suggest that children are never ‘embroiled’ in any legal challenges and unless children are of a certain age, they are not likely to have the emotional maturity required to understand the issues. Attempting to ascertain which parent is “at fault” can be deeply damaging for the children.
7) Taking legal advice from friends or family
We would strongly advise you to be wary of taking or relying on advice from family and friends, particularly if they have been divorced themselves and feel they are an expert in this area of law. The only person that you should obtain legal advice from is a qualified family lawyer.
8) Offsetting assets against child maintenance payments
At times, people find it ‘easier’ to offer a higher share – or in some case, a lump sum – of assets to offset child maintenance payments. You cannot overthrow the jurisdiction of the Child Maintenance Agency or have a “clean break” in relation to child maintenance.
9) Sharing your views on social media
Remember, anything posted on social media can be seen by a Judge and we would strongly suggest resorting from sharing negative comments in emails and text messages that could be shown to a Judge and used against you at a later date.
10) Doing it yourself
Getting divorced is a complex and technical process where legal advice is required, and you need a solicitor to handle the paperwork. We would strongly suggest that you speak to a family lawyer before agreeing and/or signing any documentation. There are affordable ways to divorce that you can discuss with a member of our team. Please contact us for further information.
For further information on divorce or to discuss a particular family law matter further, please feel free to email me or contact the team on 020 8858 6971.