NO FAULT DIVORCE: A CHANGE IN THE LANDSCAPE

Partner Kate Stovold and Solicitor Natasha Methven consider the practical consequences of the new rules and today’s introduction of no-fault divorce.

From today, 6 April 2022, there will no longer be a requirement to provide a ‘fact’ (reason) for divorce. Instead, there is a sole requirement to provide a statement of irretrievable breakdown of the marriage. Parties can apply jointly or separately and there will be no ability to defend the decision to divorce.

(For further information on the abolition of fault in divorce, please see Ending the Blame Game drafted by Cara Lahnstein.)

It is hoped the introduction of no-fault divorce will streamline the process, making it simpler and with less room for delay. Legal jargon has been updated to make the language more user-friendly, so:

  • Petition becomes Application;
  • Petitioner becomes Applicant;
  • Decree Nisi becomes Conditional Order; and
  • Decree Absolute becomes Final Order.

There will be a new minimum overall timeframe of six months (26 weeks) between the start of the proceedings (when the Court issues the Application) and when a Final Order is made. The Applicant(s) can only apply for a Conditional Order after 20 weeks. This ensures there is a period of reflection that offers time for couples to agree the practical arrangements for the future. We can assist with those arrangements, whether financial and/or in relation to the children.

What are the key considerations of the new no-fault based process?

How do you issue your Application?

The introduction of no-fault divorce brings with it a changed Application. On your behalf, we can prepare the paperwork and issue it via the online portal. If one solicitor is going to file the Application for both parties, a paper process must be adopted.

Either way, and as your legal representative, we take away the stress and worry of the paperwork.

There is a Court fee of £593. If the Application is submitted online, ‘Applicant 1’ shall pay the fee.

Will you be issuing alone or jointly with your spouse?

Sole Applicants will not be able to change their application to a joint one, so the decision on whether to apply solely or jointly with the other party must be made from the start. We can discuss these options with you.

 

What if your Application is urgent?

There should be an exceptional reason for the Application to be processed urgently. These reasons should be set out in a covering letter submitted to the Court alongside the Application. We can discuss what may or may not be ‘urgent’ and assist in persuading the Court with a carefully drafted letter.

 

Can you withdraw your Application?

Yes; there is specific paperwork for this purpose to recognise that you may change your mind. A sole Applicant may withdraw at any time before the other party has been served and does so by giving notice in writing to the Court. If a joint Application, the withdrawal must also be joint.

 

How is the Application served on your spouse?

The general rule is that the Court will send the Application to the Respondent, although the option for service via your solicitor is available upon request.

The rules about service are strict and it is important for the smooth running of the process that service is effected quickly and correctly.

 

What if you issue a joint Application and then your spouse later reneges on the process?

Joint Applications can continue as sole Applications at Conditional Order stage. If the Conditional Order has been granted, there is a specific form to be used that enables a sole Applicant to apply for Final Order following a joint Application.

 

Can you claim costs from your spouse in the Application?

There is no longer an option to apply for costs within the new style Application. However, a separation Application for costs can be filed. We can advise about that.

Behind the scenes, the parties can agree how the Court fee of £593 can be funded / divided.

 

Can my spouse still dispute the application?

The ability to challenge a divorce on the basis that the factual grounds are inaccurate no longer exists. You can no longer ‘defend’ a divorce, but it can be ‘disputed’.

Disputed cases arise when:

  • An answer is filed disputing the validity of the marriage (for example, if the parties have not entered into a legally valid marriage);
  • An answer is filed disputing the jurisdiction to entertain proceedings (for example, if neither party lives or has any other connection with England and Wales);
  • The marriage or civil partnership has been dissolved (for example, if the marriage has already been brought to an end in proceedings outside England and Wales); or
  • There is a pending cross-application for divorce.

Disputing an Application requires an offline process about which the team at LMP can advise further, to include ensuring that the timetable is strictly followed.

 

What if my Application for a Conditional or Final Order is urgent?

Urgent Applications for a Conditional Order or Final Order must be made offline on paper and lodged by email. Again, we can assist to ensure that the paperwork is filed correctly and on time. When time is of the essence, we enjoy working with clients to ensure that urgent matters are handled sensitively and expediently.

Whether you are looking to instruct a lawyer to deal with the divorce process for you, or are dealing with it yourself and have any questions regarding the introduction of the new regime, LMP are on hand to assist with your queries.

LMP supports the government’s approach to family justice – avoiding conflict wherever possible and reducing its damaging effect on families, and children in particular.

With enquiries, please contact Kate or Natasha or any member of the LMP team.

(N.B. This article only addresses the impact of the changes on divorce. For questions on judicial separation and nullity proceedings, please contact a member of the LMP team.)

Cryptocurrency on Divorce

Daniel Green explores some of the issues and complexities when cryptocurrency is an asset in a divorce.

Separating couples have plenty to think about when dividing their assets upon divorce. Thoughts of houses, pensions and lump sum pay-outs often spring to mind when thinking about a “divorce settlement”. The Family Court must consider all assets in the marriage before making a Financial Remedy order. At Levison Meltzer Pigott LLP we see assets in all shapes and sizes; pieces of art, fine jewellery, international property portfolios, company shares, luxury cars and much more. However, in this digital age we are seeing a rise in cryptocurrency assets forming part of the marital asset pot.

What is Cryptocurrency?
Most of us will have heard of Bitcoin – the cryptocurrency with the largest market value – and probably wished we had bought some when we first heard about it! But what exactly is it?

Cryptocurrency is in essence a digital asset.

As defined by HMRC, “Cryptoassets (referred to as “tokens” or “cryptocurrency”) are cryptographically secured digital representations of value or contractual rights that can be transferred, stored, or traded electronically.”

They are capable of being bought, sold, and traded online across many platforms. Despite often being referenced as “coins” there is no tangible asset because all cryptocurrencies are held digitally whether in an online account, via a third-party platform, or held on a physical storage device such as a USB. The values of cryptocurrencies are often influenced by the supply and demand of each “coin” unique to that cryptocurrency., Due to the trading of these assets being unregulated by any financial authority, they are susceptible to volatile changes in values not seen in the stock market.

How is Cryptocurrency treated within divorce?
Cryptocurrency is treated like any other asset by the Family Court. Parties must produce full and frank financial disclosure as part of their financial remedy proceedings, inclusive of cryptocurrency, alongside the more traditional assets such as properties, shares, bonds and savings accounts. The fact that cryptocurrency is not mainstream yet, particularly in the divorce arena, is not an excuse to exclude these assets from a divorce settlement.

How do I know if my spouse has any Cryptocurrency?
It is not uncommon for cryptocurrency to be held on third-party trading accounts which may not be obvious to the lay person when reviewing a bank statement. At Levison Meltzer Pigott LLP we work alongside industry leaders in tracing and locating hidden cryptocurrency accounts and online digital “wallets” that are not explicitly disclosed initially.

By way of a helpful tip, the leading cryptocurrency exchanges in the UK are currently Coinbase, Binance, and Etoro.

How is Cryptocurrency divided on divorce?
As with all settlements, the full financial landscape of the parties will be taken into account, including cryptocurrency, as per Section 25(2) of the Matrimonial Causes Act 1973 . The court can order the payment or transfer or cryptocurrencies by way of a lump sum award. However, it is complex and not without risk. The volatile nature of cryptocurrency can make it more difficult to attribute a fixed value in £ as prices can, and do, change drastically in the space of hours. It is not unheard of for modest investments to make millions in the space of a matter of months and for millions to dissipate to almost nothing overnight – this is known in the crypto-world as “pumping” or “dumping”.

It is therefore important that you take the best advice possible when dealing with cryptocurrency as part of your divorce settlement. Please do not hesitate to contact a member of the LMP team if you have any questions or would like advice regarding cryptocurrency, or any other assets, upon separation from your spouse.

Did you pop the question over the festive period? Is a prenup on your planning list?

Solicitors Joe Colley and Natasha Methven share their thoughts on the importance of a Prenup and why it should be included as an integral part of ‘wedmin’.

January can be an exciting time for couples who became engaged over the festive season. Loved-up couples can endure the dark winter months by focusing on the preparations for their wedding, with excitement levels increasing as they do. As well as choosing what to wear, which cake to pick and where to get married, couples are best advised to consider a prenup.

Traditionally, prenups had a reputation for being unromantic and only for the super-wealthy. This has now changed however, and prenups should be viewed in the same way as making a will or taking financial advice.  They represent prudent long-term planning. Prenups offer financial security and peace of mind for those entering marriage, signed in contemplation of a long, happy future together.

Prenups can incorporate a variety of agreements, to include what should happen to the family finances in the event of separation and/or divorce.  These helpful documents can regulate, for example:

  • the protection of pre-marital assets (assets brought into the marriage);
  • the determination of marital assets and how they should be divided;
  • the exclusion of an expected inheritance;
  • ownership of business assets, income and liabilities;
  • how debts should be treated and who should pay for them; and
  • the ring-fencing of assets for children from a previous relationship.

The legal status of prenups makes them complex.  In summary, for a prenup to be given due consideration by the court it must be:

  • entered into freely without duress or misrepresentation;
  • signed on the dotted line by way of a deed and include a statement of truth;
  • made in advance of your wedding, ideally at least 28 days before;
  • signed following the exchange of financial disclosure and receipt of independent legal advice; and
  • actively careful not to prejudice the welfare of any minor child of the marriage (who will be a paramount consideration for the court).

The Law Commission published a report in 2014 recommending that qualifying nuptial agreements (QNAs) be introduced in England and Wales. These would be enforceable contracts, enabling couples to make binding arrangements governing the financial consequences of divorce.  As it stands, the Government’s final response is still awaited. In the meantime, we at LMP see an increasing rise in couples opting for a prenup, and sensibly so.

It is essential to take legal advice in this complicated area that is by no means as straightforward as choosing your cake! The team at LMP are family law specialists who can provide you with sensitive support and guidance in the lead up to your big day.

Should you have any enquiries about prenups or if you would like to organise this element of your ‘wedmin’, please contact any member of the LMP team.

Finances on Divorce – Kate Stovold writes for Vantage Point

LMP Partner, Kate Stovold, continues to write for Vantage Point, the community magazine in Farnham, Surrey, with a focus in this latest article on the financial consequences of divorce.

Kate recognises that the divorce creates much uncertainty, particularly with an eye to the unravelling of family finances. Clients are often concerned about what they might receive and what they will need to pay.

Kate says this: “Once again, I am pleased to share my expertise in my home community and hope that my article provides support to families in need. I hope that my whistle-stop tour identifies important headlines and stresses the value of specialist advice.”

To read the article in full, please follow the link here.

Should you need any advice about finances on divorce, or family matters generally, please contact Kate: [email protected]

Kate Stovold – on Women in Law panel for her former school

On 23 November, LMP Partner Kate Stovold joined a panel of women to speak about her career in Family Law. Hosted by Woldingham School, where Kate studied for her GCSEs, the virtual event saw the meeting of successful lawyers working in the US, Hong Kong and London. Each woman shared the story of their journey from leaving school to present day providing careers advice and tips along the way. Following introductions, students had the opportunity to ask questions.

Speaking after the event, Kate notes:

“Growing up, I didn’t know anybody working in the law. I had no contacts; no connections. I had to create opportunities for myself, whether making endless applications for Training Contracts, pushing firms for work experience or thinking outside the box to enhance my CV.

That I am now in a position to give back gives me great pleasure. Whether speaking at an event like the one hosted by Woldingham, meeting a student to chat through their CV or offering work experience, each opportunity makes a difference to a young and aspirational lawyer.

Whilst increasingly difficult to remember my school days, I am confident that had this opportunity been presented to me, I would have grabbed it with both hands!”

Kate is looking forward to supporting future events at Woldingham School and hopes for in-person networking on the next occasion.

Co-parenting on separation – Kate Stovold writes for Vantage Point

LMP Partner, Kate Stovold, continues to write for Vantage Point, the community magazine in Farnham, Surrey. The focus of this latest article is co-parenting on separation

Kate recognises that the breakdown of a relationship has many consequences, including financial and emotional. Children can often be caught in the cross fire but it is important to shield them from the animosity as much as possible.

Kate says this: “I am pleased to again share my expertise in my home community and hope that my article provides support to families in need. Managing a strained family dynamic from the outset can pave the way for an easier and less turbulent separation. That must always be the aim and as a specialist family law solicitor, it is my goal.”

To read the article in full, please follow the link here.

Should you need any advice about child arrangements or family matters generally, please contact Kate: [email protected]

Prenuptial agreements. What and why? And wherever!

LMP partner Kate Stovold talks about prenuptial agreements in her latest article for Vantage Point, a magazine circulated to families and businesses in Kate’s home town of Farnham in Surrey.

Kate debunks some of the common myths surrounding prenups and argues that far from being unromantic, the agreement represents shrewd financial planning and wealth management.

This piece is from a series of articles on family law which Kate is writing for her local community magazine and she explains why this is important to her:

“Before the national lockdown in March 2020, and like so many others, I commuted to London every day.  However, to adapt and to do so quickly was crucial for business.  LMP transitioned to remote working overnight meaning that I was no longer a ‘London family lawyer’; simply a family lawyer.  It has been a pleasure to represent clients living in and out of London (and abroad) during the pandemic.  The show must go on!

Whilst I have now returned to the office, I am operating a flexi working schedule that facilitates the best of both for me and, most importantly, my clients.  I remain active in my London network and continue to expand my professional connections in Farnham.

I see numerous advantages for my clients including:

  • That LMP is a boutique family law practice offering a “tailored top drawer service” (Legal 500).  That service is available to all regardless of geography.
  • My firm’s ongoing commitment to excellence.
  • My relationships with the best barristers and third party experts ensuring a collaborative approach to your case.
  • The convenience of being local to you, whether in London or in Surrey.  Access to the best legal advice is now a moveable feast.”

You can read Kate’s article here.

To contact Kate for advice about prenups or any family law matter: [email protected]

Ending the Blame Game

It is almost a year since legislation was passed to enable couples seeking a no-fault divorce.  This followed years of campaigning from lawyers calling for reform. Cara Lahnstein comments on the recent much-awaited Government announcement.

No-fault divorce is now set to become reality. Yesterday the government committed to the introduction of the Divorce, Dissolution and Separation Act 2020 on 6 April 2022. This reform has been long awaited and will be the biggest change to divorce law in our lifetime. Separating couples will no longer need to assign blame in the divorce process.

Originally, the Act received royal assent on 25 June 2020 with plans to implement in autumn 2021. Understandably delayed because of the pandemic, 6 April 2022 is now fixed as a matter of Parliamentary record, rather than the indicative timetable previously being worked toward.

The new law will replace the need for evidence of conduct, such as adultery or unreasonable behaviour, or proof of separation, and instead will only require divorcing couples to provide a statement of irretrievable breakdown. It will also do away with the possibility of contested divorce applications, as the statement will act as decisive evidence that the marriage has irretrievably broken down.

Human nature can dictate that if someone has been wronged, there should be a consequence for the other party. However, courts and lawyers try to be more forward thinking and recognise that wishing to blame your partner creates an unnecessary disruption for many couples during the divorce. The focus should be on reaching a resolution as quickly and painlessly as possible.

We may still have a long way to go in terms of legal reform to accurately reflect the needs of today’s more complex “family” and relationship structures. However, finally stamping out the archaic concept of “fault” and the negativity associated with the need for one spouse to bear the full brunt of the blame for the relationship breakdown, must enable a healthier, kinder and more constructive start for a couple embarking on separate futures. We can expect the change to particularly benefit children, so often caught in the crossfire of their parents’ emotional power struggle.  It is hoped that the no-fault culture will encourage a more civilised and calmer environment in which to discuss co-parenting and a fair provision for future family life.

We see first-hand the emotional cost of divorce proceedings when conducted in a spiteful and unnecessarily acrimonious manner. It is not anticipated that this change in the law will encourage more people to divorce but it is hoped that it will enable divorcing couples to focus on the practical consequences of their separation, particularly when there are children, without getting caught up in the “blame game”.

This reform will help couples shift their attention away from why the breakdown occurred with a focus instead on what is needed, by them both, to move forward with their lives as positively as possible.

We at LMP wholly support this new legislation.

SPIP – can it help separating parents adopt a more joined up approach?

Kate Stovold reflects on the challenges for separating parents and the benefits of the Separated Parents Information Programme (SPIP).

I recently attended the informative and thought provoking evening with Dr Aric Sigman, an American Chartered Psychologist and experienced lecturer on PSHE health education for school pupils, parents and medics; see news post here.

With prevention of mental illness in children and young adults being a focus for the evening, and the need for parents to adopt a proactive yet instinctive approach to their parenting, I reflected on the difficulties facing separating / separated parents.

Where the family unit is strong, parents can work together to battle the potential issues discussed with Dr Sigman, whether body confidence, screen time addiction, alcohol, lack of sleep etc.  Parents can aim to present a united front and encourage, support and nurture their child as best as possible.

It is, unfortunately, more difficult for separated parents, not least because they are trying to present the united front from two homes, rather than one.

It is complicated further when separated parents have different parenting styles (which may have been a factor in the breakdown of the relationship), perceive problems to be of varying severity and cannot communicate effectively between themselves.

These are barriers to effective co-parenting.

How then can separated parents facilitate a more joined up approach?  What if they need help to improve their communication skills and their ability to work together as parents notwithstanding potential animosity and entrenched conflict and dislike?

Reflecting further, I considered the Separated Parents Information Programme (SPIP).

The SPIP is a course aimed at separated parents and is designed to help parents understand how to prioritise children during the separation and beyond.  The course helps parents learn the fundamental principles of managing conflict and difficulties.  There is a focus on better communication between parents and how this can be channelled to assist mother and father recognise the best interests of the child(ren).

Positive communication is a key ingredient to any relationship, whether mother and child, father and child, between parents, teacher and student, lawyer and client.

When parents can improve their communication, it is fair to assume that co-parenting becomes easier as a result.  The hope therefore is that separated parents can be equally well placed to support their child with any concerns or worries.  A united front from two different angles.

It is therefore no surprise that when the Court is asked to intervene and adjudicate the arrangements for children from separated families, the Judge will often direct the parents’ attendance on the SPIP.

The SPIP (and similar courses with similar aims and objectives) can be sourced privately too.

Mediation is another option available to separated parents who may need to agree living arrangements for their children, or who want to address a specific issue that has arisen during the family breakdown or as a result of that breakdown.  To find out more about mediation, click here.

Within mediation, there is an option for the child to have a voice.  This can be beneficial for older children, particularly if they feel torn by divided loyalties.  Family counselling and family therapy can also facilitate the ‘voice of the child’.

 

For more general advice about child arrangements, you can contact Kate Stovold at [email protected]

Civil partnership reform sneaks through whilst “no fault divorce” is delayed as the country heads for a general election

Georgina McCluskey comments on recent developments in family law

Good news for mixed-sex couples wanting a civil partnership

In one of its last acts before Parliament was dissolved last week, the House of Lords took the necessary steps to ensure that the Civil Partnerships, Marriage and Death Acts would be implemented this year.

This means that, from New Year’s Eve, mixed-sex couples will be able to enter into civil partnerships.  This comes following a ruling by the Supreme Court last year which said that the restriction of civil partnerships to same-sex couples was a breach of human rights.

This is welcome news, particularly for heterosexual couples who want the legal security provided by a civil partnership, but do not want to be married, with the connotations that may have.

“No-fault divorce” put on ice.  

However, there is wide-spread disappointment amongst family law practitioners as other, long overdue, reforms have been side-lined whilst politicians prepare for the forthcoming general election.

Back in April, I reported that the government had announced that the widely anticipated “no fault divorce” was going to be introduced. (See News post here). At that time, it had been hoped that these long-awaited changes could be introduced in as little as 3 months.

That, it is now clear, was wishful thinking.

There has long been pressure for reform to our current system, under which parties can only divorce on the basis that their marriage has broken down irretrievably as evidenced by one of 5 facts. If a long period of separation cannot be proven, then the most frequently used facts involve an element of blame.  It is also open for one party to defend the divorce, which increases costs and tensions from the outset.

The campaign for reform ramped up following the case of Tini Owens who was forced to remain married to her husband until next year as he did not consent to a divorce, and the Court did not find that her reasons for the divorce were sufficient.

Unfortunately, The Divorce, Dissolution and Separation Bill, under which one party will not be able to stop the divorce if the other has initiated it, and under which there would be no element of blame, did not complete its passage through parliament before it was dissolved.

It is hoped that this will be soon addressed by whichever party wins the election, but there will undoubtedly be further delay.

Another casualty of the election was the Domestic Abuse Bill which would have broadened the definition of domestic abuse and meant that complainants could not be cross examined by their allegedly abusive partners in family court proceedings.