Family Law Case Studies

Pre 'No Fault' Divorce law came into effect (April 2022)

Rebecca and Simon: Divorce

Rebecca (49) and Simon (51) have been married for 30 years and do not have any children.  They live in a three bedroom house. Simon works full-time as a business analyst and has a collection of old and valuable motor cars. Rebecca works part-time in a travel agency.

Recently Rebecca has spent very little time with Simon, does not help with household tasks and has also started to sleep in the spare bedroom of their house.  As a result of Rebecca’s behaviour, Simon has decided that he would like a divorce, although he is concerned how a divorce would affect him financially.  What does he need to consider?

Simon could file a petition for divorce on the basis that the marriage has irretrievably broken down. To prove this he will have to show one of five facts: adultery, unreasonable behaviour, two years separation with Rebecca’s consent, five years separation without Rebecca’s consent or desertion. Simon could petition based on Rebecca’s behaviour which has led Simon to believe he cannot reasonably be expected to live with Rebecca. Simon will need to cite examples of her behaviour which have led to the breakdown of their marriage. 

Once the petition has been issued, Rebecca will be served with a copy and she will need to file a form at court called an Acknowledgement of Service. The court will firstly pronounce a Decree Nisi and six weeks and one day later Simon can apply for the Decree Absolute. The Decree Absolute is often delayed until an agreement has been reached about finances.

Family finances are dealt with separately from the divorce process. In order to ascertain the full value of the family assets, both Simon and Rebecca should undertake full financial disclosure.  It is important to note that the division of family finances is unaffected by the reasons for the breakdown of the marriage save for very specific circumstances such as severe financial misconduct.

The court will attempt to ensure that there is a fair division of the matrimonial assets to provide adequate housing for both Simon and Rebecca.  Various factors will be taken into account to determine what a fair settlement might be. The entire capital accumulated between the couple would be taken into account, to include but not limited to savings held in their respective sole names and other assets which would include Simon’s collection of motor cars.

Simon should be aware that on the basis of the length of their marriage and the fact that he earns a considerably larger salary than Rebecca, Rebecca may need some spousal maintenance (monthly income) from him to supplement her income. Rebecca would also be encouraged to maximise her income by for example, increasing her working hours. 

Simon should be made aware that due to the length of their marriage, Rebecca may be entitled to a share of his pension.

Next steps

Simon should contact a family law solicitor who can provide him with legal advice about his options for the divorce and the finances.

Philippa and Robert: Divorce

Phillipa (53) and Robert (55) have been married for 35 years and have one child together who is living independently. They live in a three bedroom house in Kent. Robert works full-time as a business analyst for a bank and enjoys collecting rare and valuable war medals. Phillipa works part-time in a confectionary shop.

Over the last few years, Robert and Phillipa have grown apart and have spent less time together, with Robert travelling for his work and Phillipa regularly attending confectionary fairs in Devon. Two months ago, Robert returned home and Phillipa told him that she had fallen in love with another man and she wanted a divorce. Robert reluctantly agreed to a divorce but is concerned how a divorce would affect him financially. What does he need to consider?

Divorce

Robert could file a petition for divorce on the basis that the marriage has irretrievably broken down. To prove this he will have to show one of five facts: adultery, behaviour, two years’ separation with Phillipa’s consent, five years separation without Philippa’s consent or desertion. Robert could petition based on Phillipa’s adultery but in order to do this, Phillipa would have to agree to sign a statement confirming that the adultery took place. Alternatively, Robert could issue the petition based on Phillipa’s behaviour and he would have to provide examples of this behaviour.

Once the petition has been issued, Phillipa will be served with a copy and she will need to file a form at court called an Acknowledgement of Service. The court will firstly pronounce a Decree Nisi (interim decree of divorce) and six weeks and one day later Robert can apply for the Decree Absolute (final decree of divorce). The Decree Absolute is often delayed until an agreement has been reached about the finances.

Family Finances

Family finances are dealt with separately from the divorce process. In order to ascertain the full value of the family assets, both Robert and Phillipa should undertake full financial disclosure. It is important to note that the division of family finances is unaffected by the reasons for the breakdown of the marriage save for in very specific circumstances such as severe financial misconduct. The starting point is an equal division but various additional factors will then be taken into account to determine what a fair settlement might be.

Capital and Housing Needs

As Robert and Phillipa’s child lives independently, the court will simply need to ensure that there is a fair split of the matrimonial assets to provide adequate housing for both Robert and Phillipa. The entire capital accumulated between the couple would be taken into account, which would include but is not limited to Robert’s valuable war medals, savings, policies, shares and bonds.

Income

Robert should be aware that on the basis of the length of their marriage and the fact that he earns a considerably larger salary than Phillipa, Phillipa may need some spousal maintenance (monthly income) from him to supplement her income. Phillipa would also be encouraged to maximise her income by for example, increasing her working hours.

Pensions

Robert should be made aware that due to the length of their marriage, Phillipa may be entitled to a share of his pension.

Next steps

Robert should contact a family law solicitor who can provide him with legal advice about his options for the divorce and the finances.

John & Emma: Divorce and the family finances

John (42) and Emma (40) have been married for 14 years and they have two children together; Ruby who is 10 years old and Lucas who is 7 years old. They live in a 3 bedroom house in Kent. John works full time as an IT Consultant and Emma works part-time as a senior sales assistant, which fits around the children’s school hours.

Over the last few years, John and Emma have grown apart. John recently moved out of the family home and has told Emma that he now wants a divorce. Emma has reluctantly agreed to divorce, but she is very concerned about how she and the children will manage financially. What does Emma need to consider?

Divorce

Either party could file a petition for a divorce but as John wants a divorce he could file a petition for divorce on the basis that the marriage has irretrievably broken down. To prove this he will have to show one of five facts: adultery, behaviour, two years separation with Emma’s consent, five years separation without Emma’s consent, or desertion. John could issue the petition now based on Emma’s behaviour which be finds unreasonable and intolerable to live with and he would have to give examples of this behaviour. This could be difficult for Emma to accept but they could agree the wording of the petition before it is issued. It is difficult and expensive to contest a divorce petition once issued at court. As Emma has reluctantly agreed to divorce, she can  negotiate the wording of the petition rather than defending the proceedings.

Once the petition is issued, Emma will be served with a copy and she will need to file a form at court called an Acknowledgment of Service which she must complete and return to the court within 7 days of receipt. Once John has made an application for the first divorce order, the court will firstly pronounce the Decree Nisi (interim decree of divorce) and six weeks and one day later John can apply for the Decree Absolute (final decree of divorce). The Decree Absolute is often delayed until after an agreement has been reached about the finances.

Family finances

The family finances are dealt with separately to the divorce process itself. John and Emma should undertake full financial disclosure to determine the true value of all the matrimonial assets. The starting point is an equal division of all the assets and then various factors must be considered to determine what would be a fair settlement. In summary, Emma may want to consider the following:

a) Capital and housing needs:

The court will want to make sure that the children are securely and adequately housed. Emma should consider how much capital there is (including savings and investments), her housing needs, her mortgage capacity and how much equity is in the family home. John may also need some capital to rehouse himself.

b) Income:

Emma may need some spousal maintenance (monthly income) from John to supplement her income so she can support herself and maintain the family home. Emma should also consider whether she can increase her hours at work to increase her income which she would be expected to do by the court.

c) Child maintenance:

John has a liability to pay to Emma child maintenance for both children. The amount will depend on his income but it is likely that he will be required to pay 20% of his net income. If John has the children to stay with him overnight for more than 52 nights per year, the child maintenance he pays will be reduced.

If John or Emma wanted to assess John’s child meaintenance obligations, an initial assessment can be made on the Child Maintenance Service calculator at: https://www.gov.uk/calculate-child-maintenance

d) Pensions:

Emma should consider whether John has any pensions, their value and the value of her own pensions.

Next steps

Emma should contact a family law solicitor who can provide her with legal advice about her options for the divorce and the finances.