Take a look at this amazing infographic about social media as it impacts upon divorce and family law in the USA. Infographics are becoming increasingly popular especially on marketing and other sites, but this is the first time we’ve personally seen something as impressive as this on a lawyer website. We may just get in touch with them and ask them who produced this for them… maybe the head of family is also a talented graphic designer for the web, but we doubt it !

The infographic itself is definitely worth a read. Whilst the law in the USA is of course different to here, the trends are clear, and the use of social media evidence in English divorce and family law cases is also on the increase. It’s always important to bear in mind that what you say and do online can often now backfire, so we recommend a careful and considered approach.

Separation

Upon separation of married couples, both mother and father have automatic parental responsibility for children. The situation is entirely different in the case of unmarried couples; here upon separation only the mother has automatic custodial rights and duty for well-being of the child.

The law reforms in 2002 made it possible for unmarried fathers to acquire parental responsibility if they jointly register the child’s birth with the mother. Alternatively, unmarried couples can sign a Parental Responsibility Agreement.

Please note that custody of children and parental responsibility are separate from the financial maintenance of children. Therefore, a father with no custody rights will still need to financially support the children. The Child Support Agency is a body that divorced or separated parents fulfil their financial maintenance responsibilities towards children.

Custody of Children upon Divorce

First of all, it is crucial to understand that custody of children does not form part of divorce proceedings as such. The courts in England and Wales do not make orders regarding custody of children on a regular basis as a part of divorce proceedings. However, if there are children of the marriage, a husband or wife filing for a divorce will also need to file a form called ‘Statement of Arrangements for Children’. The form contains basic information about the children such as their names, dates of birth, addresses of educational institutions that they attend, their state of health, and whom they live with.

It is important for the parents to try to resolve any disagreements over children between themselves. It is very common for parents to argue. Often one parent will not want the other to see the children and spend time with them. The courts normally do not intervene and the parents have to sort out the custody of children themselves.

Custody of Children Orders

Under the Children Act 1989 the courts can make decisions about children custody and must ensure that at all times the child’s welfare is of paramount importance. When deciding the custody of children and other relevant arrangements the courts will take the following into account:

• Generally, the older the child is, the more significant its own feelings and views are.
• Love and affection as well as the ability of the individual parents to provide for the child’s needs.
• Minimum impact on the child’s emotional state. Sometimes, drastic changes in the child’s environment might add stress.
• History of any domestic violence.

Shared Custody

Advantages

Sometimes parents fail to recognise significant advantages that shared custody of children can provide. Even though, in majority of cases it is the mother who is granted custodial rights, shared custody has been increasingly popular in the UK and is already quite common in the US. The main idea behind shared custody is that a child needs both parents to be raised and it has been confirmed that shared custody helps to develop good parental relationship between the child and both of its parents.

The shared custody of children can also bring significant advantages to the parents themselves. Standard custodial orders naturally place more day to day responsibilities on one parent (usually the mother), providing the other with rights of contact during the weekends. With shared custody, children can flexibly spend time with their parents, having effectively two homes to stay at.

Disadvantages

The main obstacle to shared custody is the relationship between the ex-partners. It might be difficult for a divorced couple to carry on sharing so much of their lives together. Shared custody requires close cooperation between both of the divorced parents.

In addition, when circumstances change and one parent has to move away (i.e. due to change of workplace), the transition from shared custody to limited contact with the other parent can be distressful and emotionally damaging for the child.

One of the most important outcomes which need to be solidified during divorce proceedings is the financial settlement. Who gets what? Can I prevent my partner from taking a particular item? These are all common questions which people need answers to when they are about to begin the process of divorcing their partner. Sometimes it can be quite a complex process deciding what a fair divorce settlement is.

The court will have a wide variety of powers in order to deal with divorce cases. They will also ensure that the “Overriding Objective” is followed. Generally speaking, this is a principle which the court attempts to follow in every case. It is the principle of dealing with every case justly.

The first step in attempting to settle a divorce case is for each party to disclose their finances, and all the assets they have, so they can begin to negotiate the terms of a fair settlement. If you are in the beginning of the divorce process, it would be advisable to consider one of the four following methods in order to help you reach a satisfactory agreement. These are: voluntary disclosure, a court procedure, mediation (collaborative law) and temporary monetary arrangements.

Voluntary Disclosure

As has been mentioned above, this is where each party voluntarily exchanges their financial information, and with the help of solicitors who specialise in family law, amicably negotiate a fair settlement between them. If this method is successful, there will be no need to go to court. The advantages with this method are that the parties have control of their own negotiations, and if they work amicably, can reach a fair settlement without having to go through the difficulties of attending a court proceeding.

Details of finances which should be disclosed include everything from payslips to bank statements. Please note that an agreement which has not been converted into a court order is not yet a binding agreement. It is therefore important to ensure you follow through with this final step in order to have a legally binding agreement (this does not been you will have to attend court yourself).

Pursuing a Court Procedure

Although what has been described above is the ideal scenario concerning divorce proceedings, in reality, this is sometimes not what happens. If your partner refuses to disclose their financial information, or refuses to agree on a fair settlement, it may be necessary to begin a court procedure. If this is the case, you could apply to the court for a “financial remedy”. In essence this is an application to the court to outline the financial process.

This can sometimes take 12 months. Choosing to pursue a court procedure will ensure that some progress is made with your financial issues, but it may not guarantee a resolution.

Mediation

This is a new method which focuses on allowing the parties involved to reach their own agreement. It involves both parties agreeing to be bound to a contract which states that neither party will pursue a court procedure, and instead will work on reaching a financial situation that both agree to. The partners therefore negotiate together, with their lawyers present. Do remember that you are aiming to reach a fair resolution, which is right both for each other and for any children involved.

Once an agreement has been reached, this can be converted to a court order.

Temporary Monetary Arrangements

If whilst the divorce proceedings are continuing, one partner refuses to support the other financially, it is possible for the other partner to submit an emergency application to the court. This is known as an application for “maintenance pending suit”. It is also possible for the court to grant injunctions or freezing orders on a person if they believe they are trying to get rid of undisclosed assets during the court proceeding.

Alicia Cenizo - Partner and head of family law at Darlingtons Solicitors

Contact me for a further, free, more in-depth discussion about finances and your divorce.

Divorce, annulments or judicial separations are some of the hardest times for couples. It can be extremely stressful and emotionally draining.

Depending on the financial circumstances there may be disputes over money or property which cannot be settled without the involvement of the courts. When a court makes an order relating to financials in a divorce hearing it is known as ancillary relief. Ancillary relief will deal with the sale or transfer of property and other assets, maintenance payments, lump sum payments and pensions.

Ancillary Relief and the Form E

There are three stages to ancillary relief; The First Appointment, Financial Dispute Resolution and The Final Hearing. What we are concerned with here is The First Appointment. This is where a judge will consider the case for the first time. Up to 35 days before The First Appointment both parties should exchange Financial Statements, also known as a Form E, including filing a copy at court. It is during this time that the parties can check each other’s forms and ask further questions or seek more information. The Form E itself summarises each parties financial situation and explains what each party is seeking and why. It is a lengthy document and can be time consuming to complete. It includes the following information:

• Personal details e.g. names, length of marriage, occupations, number of children etc
• Property
• Other Assets
• Business Assets and Company Directorship
• Pensions
• All Income
• Income and capital needs for you and your children

In addition to the Form E parties are required to provide supplementary documentation, such as bank and credit card statements for the last 12 months. If you have money in another person’s banks account or if you have assets abroad these must be disclosed as well.

The contents of the Form E must be drafted with care as it needs to be accurate to the best of your knowledge and before being submitted to the court you have to swear on oath or affirm its contents. You can do this at court for free or before a solicitor who is likely to charge, although if you have appointed a divorce lawyer this will usually be included as part of their fees. Any misstatement is a criminal offence.

It is also important to draft these documents carefully because they will be heavily scrutinised by the other party’s lawyers and if you do not complete the forms correctly or are not seen to be making full and frank disclosure you may increase your own legal costs and be further penalised by the court.

You may also harm your case in terms of what you are entitled to if you do not carefully complete the income and capital needs sections. This is sometimes completed using guess work rather than being based on facts. You should think very hard about your current and future expenditure as the court will use this information to make future provisions, such as spousal maintenance. To help you complete this section most solicitors should be able to provide you with a budget statement to work from. Any documentation you can provide to back up your capital and income needs will really strengthen your case, for example, if you state that you require a house of a particular size and price then you should enclose estate agent particulars with the Form E.

Alicia Cenizo - Partner & head of fmaily law at Darlingtons Solicitors

Completing the Form E is crucial to ancillary relief proceedings and it advised that you appoint a solicitor to assist you. We can help, so please get in touch for an initial free discussion.

What is a Residence Order?

A Residence Order is an order issued by the Family Proceedings Court or FPC stating which parent a child should live with, usually after the parents divorce or separate.

The order will also state any visitation rights of the parent without custody of the child or children involved.

Types of Residence Order

There are two types of Residence Order, a Joint or Shared Residence Order and a Full Residence Order.

Joint Residence Order

A Joint or Shared Residence Order is when the child will reside with both parents and the order will specify the length of time the child will reside with each parent. This allows both parents to maintain responsibility of the child and remain involved in the child’s upbringing. Sometimes the child will reside for equal amounts of time with each parent and other times the child may reside with one parent for a longer period of time that the other. The courts will make this decision using their discretion.

Full Residence Order

A Full Residence Order is where the court specifies that the child will reside with just one parent. However, more often than not, the parent who the children are not living with will still have contact rights.

When a Residence Order is in place the parent without responsibility cannot take the child or children out of the country without permission from either the parent with responsibility or the court.

A parent with responsibility can only take the child or children out of the country for a period of 1 month without consent.

A Residence Order usually lasts until the child reaches 16 years of age however, if there are exceptional circumstances surrounding the child the court may feel it is appropriate to extend the Residence Order until the child reaches 18 years of age.

Mediation

A Residence Order is usually applied for when parents are unable to make amicable arrangements regarding their child or children’s living arrangements. Seeking a Residence Order is generally the very last resort and it is advisable for the parents to seek mediation beforehand to help them reach an agreement without having to subject themselves or their children to stressful and often heartbreaking court proceedings.

Mediation is where a volunteer mediator will attempt to work through the issues and concerns the parents have and will try to help them come to an agreement as to which parent the child or children will reside with.

Low income families or parents on benefits may be entitled to free or reduced rate mediation.

Of course sometimes, due to their particular circumstances, there is no way for the parents to reach a happy medium and the only option left is to put in an application for a Residence Order.

Paramountcy

Paramountcy is the term used for how the courts make the decision of which parent the child will live with and encompasses every aspect that the court deems is in the best interests of the child.

Any decisions made by the court regarding the welfare and upbringing of a child must be made with regard to section 1 of the Children Act 1989. The court’s decision will need to take into account:

• The child’s express feelings and wishes, whilst also taking into account the child’s level of understanding and their age. On some occasions, where a child is old enough to make decisions for themselves they may express a preference as to whom they would rather live with and the courts will take this into consideration when evaluating the case.

• The child’s educational, emotional and physical needs

• How a change in circumstances is likely to effect the child

• Other characteristics which the court feels are relevant to the case such as the child’s background, sex and age

• Whether the child is at any risk of suffering harm or has previously suffered harm perhaps through physical, emotional or sexual abuse

• The capabilities of the parents in meeting the child’s needs and the capabilities of anyone else who will have regular contact with the child in meeting that child’s needs. This may include a step mother or step father, a new partner or a family member.

How are the financial matters decided?

It is preferable and cheaper if the parties agree financial matters amongst themselves. However, as the emotions surrounding divorce proceedings run high, this is not always possible. You might want to consider instructing a mediator or your lawyers to help agree certain issues.

What needs to be considered?

The starting point is a presumption that matrimonial assets should be divided equally between the parties. This 50:50 split is departed from where it can be demonstrated that there exists a good reason for doing so. It is desirable for the parties to achieve a ‘clean break’, but this is often not possible, for example when there are children.

Matrimonial assets are assets which have been acquired during the course of the marriage but can include assets brought into the marriage or acquired afterwards in certain circumstances, they include:

• The former matrimonial home;
• Endowment policies;
• Savings accounts;
• Vehicles;
• Pensions; and
• Personal possessions (chattels).

The factors which are taken into consideration when deciding whether to depart from the 50:50 split include:

• First and foremost the welfare of any children;
• The current and future financial resources of each party;
• The financial needs of the parties;
• The standard of living enjoyed;
• The age of each party and the duration of the marriage; and
• Any mental or physical disability to either party.

The fact that one of the parties is at fault for the breakdown of a marriage is rarely taken into account in deciding financial provisions.

Amongst other things, a court can order:

• A lump sum payment;
• Spousal periodical payments;
• Child periodical payments; and
• A pension sharing order.

Financial negotiations

Both parties need to disclose their financial positions at the start of the negotiation process. They should also decide what their objectives are and which of those are of the most significant to their future. There is no time limit on the negotiation process as it is separate from the divorce proceedings. Once an agreement has been reached the spouses should apply to the court for a Consent Order to ensure compliance with the agreement and to prevent any future claims.

The final settlement

There are no set rules as to what the agreement should include and it will depend on the circumstances and financial positions of the parties. There are however certain matters which should be considered, such as whether:

• The family home should be sold or maintained by one party;
• Periodical payment are necessary, either child or spousal;
• Splitting any pension entitlements is necessary;
• Any existing wills need to be amended.

Any maintenance paid by one of the spouses to the other can stop when that party re-marries, co-habits or another trigger event takes place. If either party re-marries before the final settlement is agreed they might lose their right to receive maintenance.

Potential problem areas:

Joint accounts: if the spouses can make withdrawals from a joint account without the consent of the other they run a risk of money being taken from the account. Freezing the account is possible but might cause problems if the bills or other payments are made out of that account. An interim financial order can be made until the final settlement is agreed.

Sole ownership of the family home: if one of the parties solely owns the house, the other should register their interest in the property at the Land Registry which will prevent the house being sold without their consent.

Who pays the legal fees?

The costs can be kept low if the parties agree most things amongst themselves; however they will most likely use lawyers throughout the negotiation process. The spouses can agree who pays the legal costs as part of their negotiations; it is common that parties pay their own costs.

If you need further advice visit our main site to contact our divorce solicitors

Divorce or the breakdown of a marriage can have a significant impact on the couple and their children if they have any. Divorce is a legal process, which requires the court to sanction it. The process can be made simple by the spouses co-operating or on the other hand difficult.

Several matters would have to be dealt with and decided upon and typically issues regarding the custody of children, spousal support and distribution of property are at the top of the list. Whilst considering the distribution of property and assets, all of the couple’s assets would have to be evaluated. A pension therefore would fall in the category of an asset. A pension is a fixed sum of money paid on regular basis usually following retirement from work.

A pension in a divorce would be considered a financial asset and sometimes can be the largest capital asset after the matrimonial home. Where the wife in a marriage has left work to look after the family and rear the children, she would also lose her entitlement to a pension. In marriage the wife would expect to be looked after and have right to her husband’s pension at retirement age or in the event of the husband’s death, the wife would think she would be automatically entitled to his pension. However, where there is a divorce the wife would want to be compensated for her loss of or lack of pension. Similarly, the case may be that the wife has a larger pension than the husband and he feels he has a legitimate claim to some of his wife’s pension.

Pensions in divorce is not as simple as splitting the sum in half. No party has an automatic claim to half their spouse’s pension. The government has put into place a set of principles designed to help understand the couple’s financial situation, the circumstances of their family and future prospects of the couple as individuals. This enables the court to fairly and justly distribute their assets amongst them. Such an example would be where the matrimonial home is transferred to the wife because the children are of dependent age, the remaining largest asset may be the husband’s pension. It would therefore be unfair to give half the pension to the wife.

In divorce proceedings, pensions are given a cash value. The pension provider can give a valuation of the pension. Pensions can be dealt with in three ways by the divorce court:

• Offset the pension against the other assets such as the matrimonial home; or
• Have an arrangement in place, so that when the pension comes into payment, a portion of it would be paid to the other party (earmarking); or
• The pension can be split at the time of divorce and each party can takeaway a portion.

Offsetting

Offsetting the pension against other assets is a difficult method to fairly distribute funds because it could be the largest asset and more so the value of it tends to fluctuate more than other assets such a property. Despite this being the case it is still commonly used by the courts as a way dealing with pensions.

Earmarking

Where the option of earmarking is chosen, the amount that is to be paid is decided at the time of divorce. The amount can be varied by application to the court by either party. The drawback of earmarking is it does not give the couple a clear break so as to speak from their relationship, which would be the primary reason for divorce in the first place. It also depends on when the spouse with the pension retires. The arrangement of earmarking obviously only continues until the death of the spouse with the pension or until the spouse receiving the pension remarries in which case they relinquish their right to their portion.

Sharing

Sharing the pension at the time of divorce can be part of a clean break, although not always, and especially if there are children involved. The idea is to split the entitled portion of funds from the pension scheme member’s. Various options are available to the spouse getting the pension. They can request that the money transferred to them is done so internally within the pension scheme so that they acquire their own scheme or the money can be transferred out to another pension arrangement of the spouse’s liking.

What is a Clean Break Consent Order?

A Clean Break Consent Order is a legally binding agreement intended to financially protect the parties concerned both during and after the divorce proceedings have taken place. The Clean Break Consent Order is agreed by a court generally at the final stage or the Decree Absolute stage of the divorce.

Divorce is the legal process that ends the marriage contract between two people but it does not deal with any financial matters pertaining to the divorcing couple so many couples going through the divorce process opt for a Clean Break Consent Order to prevent either party from making a financial claim against the other in the future.

 What Financial Aspects does a Clean Break Consent Order Cover?

A Clean Break Consent Order deals with any financial issue that pertains to one or both of the divorcing parties such as:

• The sale and division of a property
• The transfer of a property
• Maintenance payments made to spouse and/or children
• The transferral of investments and shares
• The division of joint debts
• Pension sharing orders
• Lump sum payments
• Personal property

Drawing Up and Filing a Clean Break Consent Order

• Both parties will have to decide between themselves who has the entitlement to which financial assets and what payments and divisions will need to be made.

• Once both parties have reached an agreement they can then instruct a solicitor to draw up the legal documentation ready to be signed by both parties and filed with the court.

• Both parties will also be required to fill out a statement of information on filing the consent order with the court which will show their individual financial circumstances.

• The judge will look over both the Clean Break Consent Order and both parties’ financial statements before deciding whether to grant the consent order.

• On some occasions the courts may need further information before reaching a decision so both parties will be contacted to provide that information.

• The court process for a Clean Break Consent Order is relatively simple and neither party, unless under exceptional circumstances, will need to attend the court.

• It will cost to have a Clean Break Consent Order drawn up and these costs can vary depending on the solicitor, both parties will also have to pay court costs for filing their consent order but both these charges are minimal compared to what it could cost either party without a Clean Break Consent Order.

Deferred Clean Break Consent Order

 Sometimes a divorcing couple will opt for a Deferred Clean Break Consent Order which means that the consent order will kept on hold and then put in place once certain circumstances have taken place. This could refer to one party needing to start a new or higher paid job before being able to commit to a set monthly maintenance figure or perhaps both parties waiting for a joint business venture to take off before being able to calculate either individual’s financial entitlement to that business.

Foregoing the Clean Break Consent Order

If a Clean Break Consent Order is never actually put in place then an ex-spouse may be able to make a financial claim against their ex-partner at any time after the divorce proceedings have been completed. Some of the reasons which may prompt an ex-spouse to put in a financial claim against their ex-partner include:

• The ex-partner receiving a pay rise or securing a higher paid position

• The ex-partner coming into money such as an inheritance, lottery win or other type of windfall

• An increase in the value of the property where the ex-partner lives

Do I need a Divorce Lawyer ?

If the divorce is agreed and relationships remain amicable, as long as the subject is researched thoroughly, it is possible to conduct a divorce without the aid of a Solicitor. However, this is not advisable, given that the parties are unlikely to know the ins and outs of the law and may end up with an agreement that is not legally binding, or if it is, makes no provision for ensuring that either party cannot make a new claim against the property, or the estate, of the other.

However, there are some downsides in engaging the services of a Solicitor too soon, as this is may increase personal animosity between the parties. This in turn will make decisions in relation to children and finances much more difficult and in some cases, may lead to the cessation of informal communications between the parties altogether. Of course there are also issues regarding legal costs which can quickly mount up and it is at this point that arguments start as to who should pay for these.

However, the advantages of enlisting the help of a Solicitor outweigh the disadvantages in that the legal representative will be able to separate the issues from the emotions involved and this in turn will lead to a clearer view as to each party’s rights and your representative will be able to point out what you are legally entitled to and how to go about trying to settle the matter in a constructive way. The Solicitor also has the expertise as to how to proceed efficiently with the divorce process and this goes hand in hand with representation at Court, which can be an intimidating experience for a lay person. Where relationships become strained, the Solicitor may be able to smooth these over with the other side, by discussing options available with the other party’s legal representative. This is particularly relevant in cases where child contact becomes an issue and it is often the case that Solicitors can prevent the parties from point scoring and behaving in a manner which may reflect badly upon them in court.

So, once you have established whether you wish to engage the services of a solicitor, the question of ‘Can I afford a Divorce Lawyer?’ arises.

Can I afford a Divorce Lawyer ?

Many Solicitors offer a fixed fee for divorce, or provide estimates based on whether the divorce will be straight forward, or is defended. If the divorce is not agreed, then costs are likely to go up, as there will be more correspondence between the parties and the negotiations in relation to the statement of particulars in the petition can take time to reach a stage where both parties are happy to agree. Additionally, where there is a dispute as to the financial position of each party, costs can rise substantially. Where the divorce is undefended, we, as a Firm dealing with this type of work day in and day out, give an estimate of between £1,000 – £1,500 plus vat. If we are acting in financial matters which are disputed, fees can increase substantially, going up to £5,000 to £10,000 plus vat, depending on the complexity of the issues.

Is divorce the only option ?

There is one ground for divorce, namely that that the marriage has broken down irretrievably. This is proved by one of the following five facts:

1.            Adultery;

2.            Unreasonable behaviour;

3.            Two years’ desertion;

4.            Two year’s Separation and the other party consents to the divorce;

5.            Five year’s separation (no consent needed).

 If one of these facts is proved, and provided that the parties have been married for more than one year, the court is likely to grant a divorce, provided that any issues relating to children and finances have been finalised.

However, if the parties are unsure as to whether they actually want a divorce, a trial separation may be useful. If this is successful, the parties may reconcile, but if it is unsuccessful, they may wish to attempt mediation. Here, they would be able to discuss and hopefully resolve any issues which are placing a strain on the marriage. They could also draw up a separation agreement or a deed of separation.

This could cover points such as whether the parties are planning to obtain a divorce in the future, what will happen to the children should this arise, it would set out any maintenance payments to be made and could also set out division of any property. However, these agreements are not legally binding and can be set aside by the court in subsequent divorce proceedings, although they are useful in that a court could use this as evidence that the parties have been living apart for a specified period of time, should the parties wish to divorce at a later stage.

If a trial separation is not successful, and the parties wish to separate but do not wish to obtain a divorce, they can achieve a judicial separation. This is more advantageous than a separation agreement, as the court becomes involved and can therefore sort out any issues in relation to money or children. However, extremely similar procedures apply as per divorce proceedings. For example, you have to prove the same facts and the cost of a judicial separation is likely to be similar to that of a divorce.

However, if the parties have strong religious views, or obtaining a divorce would cast them out of the community, a judicial separation may be a preferable option.

If you have any questions in relation to any of the topics raised in this article, please do not hesitate to contact Alicia Cenizo or Maya Bhatiani, divorce specialists at Darlingtons Solicitors.

In certain circumstances parties may wish to seek a Decree of Nullity rather than a Decree of Divorce. In comparison, relatively few Decrees of Nullity are sought.

There are two ways of obtaining a Decree of Nullity:

 1.  Declaring that a marriage is void from the outset, in which case it is treated as never having existed at all when the Decree is granted.

2.   Declaring that a marriage is voidable, in which case it will be treated as being valid and subsisting until the date the Decree is actually obtained.

 Void Marriages

 A marriage will be void in situations which include the following :-

a)            Where the parties are too closely related to each other.

b)            Where either party was under 16 years of age at the time of the ceremony.

c)            Where either party was already lawfully married.

 If a marriage is void it never existed, so theoretically no Decree is actually needed to end it. However, since a Decree is needed if ancillary financial orders are required, a Decree is usually obtained. The procedure follows the standard one of Divorce requiring the issue of a Petition.

Voidable Marriages

 A marriage will be voidable in situations which include the following :-

• Non-consummation – This can be either due to one or other of the parties’ incapacity, or their willful refusal. It should be noted that this ground does not give rise to a voidable Civil Partnership since there is no requirement is such a relationship for there to be consummation.

• Lack of consent, for example due to duress.

• One party was suffering from a mental disorder, such as to make them unfit for marriage.

• An interim gender recognition certificate was issued to the Respondent after the marriage.

As the marriage exists until such time as a Decree of Nullity is obtained, it is necessary for one or other of the parties to start the Petition procedure. A bar to obtaining a Decree can exist if the Respondent can satisfy the Court that the Petitioner, knowing that the marriage could be ended, behaved in such a way as to lead the Respondent to reasonably believe that they would not seek to end the marriage. In addition it would be necessary to show that it would be unjust to the Respondent to grant the Decree.

Generally the Petitioner must apply for the Decree within three years of the marriage, however the Court has discretion to extend the time limit on application to the Court. This time limit does not apply to non-consummation cases, nor to cases based on an interim gender recognition certificate.

Consequences of a Decree of Nullity

 Ancillary Orders – The parties to a suit for nullity are still entitled to apply for all orders in relation to children, property and finance as are available on Divorce.

 Children – Although legitimacy of children has little consequence in law today, under the Legitimacy Act 1976 the children born to parents who subsequently obtain a decree of nullity are automatically legitimate if the parents’ marriage is voidable, because the marriage existed up to the time of the Decree.

If the marriage is void the children will be legitimate if, at the time of conception (or celebration of the marriage, if this is later), both or either of the parents reasonably believed that the marriage was valid and the father was domiciled in England and Wales at the time of the birth, or if he died before birth, he was domiciled immediately before his death.

Wills – A voidable marriage will revoke a Will like any other marriage, however a void marriage does not have this effect as it never existed at all. When the Decree of Nullity is granted, whether in respect of a void or voidable marriage, it will have the same effect on a Will as a Decree of Divorce. This means that the former spouse is to be treated as having died on the date of the Decree.

It should be noted that neither spouse will be able to claim in the event of the other’s intestacy once the Decree is granted.

Choosing Nullity over Divorce

In some cases there can be grounds for both Divorce and Nullity. Whilst it used to be better to apply for Divorce in those circumstances as Divorce has the ‘special procedure’ which is cheap and simple and Nullity cases had to be heard in open Court adding to the cost and publicity, today most Nullity cases are dealt with under the same ‘special procedure’ as Divorce.

The benefit of Nullity over Divorce is that Nullity can be obtained in the first year of marriage whereas for Divorce the parties must wait for a year before making any Petition. Additionally, for some parties there may be religious reasons for wanting to have the marriage declared non-existent rather than dissolved.

This article courtesy of Shmuel Portnoy of Darlingtons Solicitors, who offer specialist divorce and family law advice. If you have an issue, get in touch with Darlingtons.