Relationship Breakdown – common mistakes to avoid
Any relationship breakdown can be an overwhelming process, especially if you are married or in a civil partnership. Not only are you dealing with the emotional impact of the breakdown, but you have to also consider all the legal requirements to formally bring the relationship to an end.
Most people get divorced or dissolve a civil partnership just once in their life so are usually going through the experience for the first time. As with anything new, it can feel confusing, like you’re navigating unknown pitfalls and unsure how to avoid mistakes. Here are the most common mistakes people can make.
Not getting a financial order
Many people choose to deal with the divorce or dissolution proceedings themselves especially now we have the ability to file for a divorce online and should by April 2022 have the same ability to dissolve a civil partnership. However, there is often the misconception that a decree absolute or a final dissolution order will also sever the financial ties each party has against the other. This is a common myth!
In order to terminate financial claims, a separate financial order is required. If the parties have a reached an agreement relating to the financial aspects of their relationship, or even where there are no finances to divide, a financial order is required to provide a clean break and prevent future financial claims being made. Financial orders can be technical and something which should be produced by an experienced family law solicitor.
Lack of financial planning
When looking to divide the assets of the relationship, it does not serve either party well if they are plucking percentages out of the air and have no idea what this will mean on a practical level. Both parties need to work with their own family solicitor and an independent financial planner in obtaining full financial disclosure and working how a fair division of assets so each party knows what this means in real terms.
Re-marrying before the finances have been resolved
New relationships can complicate ongoing divorce proceedings. Even if the decree absolute or dissolution order has been obtained, either party should refrain from remarrying or entering into a new civil partnership until financial matters have been resolved and sealed in a formal order.
If you re-marry or enter into a new civil partnership without a financial order, then you may lose your right to apply for one. This means that you cannot rely on the Matrimonial Causes Act 1973 (or the equivalent provisions under the Civil Partnership Act 2005) and the fairness that this act looks to achieve. Instead, any applications would need to be made under the ‘Trusts of Land and Appointment of Trustees Act 1996’, which is much stricter and gives the courts far less discretion.
Agreeing to offset capital assets against child maintenance payments
It is not uncommon to be asked whether the primary carer could be provided with a lump sum or a higher share of the marital assets, rather than ongoing monthly child maintenance payments. The answer is no. The problem is that you cannot oust the jurisdiction of the child maintenance agency or have a clean break in relation to child maintenance.
Inappropriate discussions with the children
Whilst the relationship may have ended, a lot of parties will have had children during the course of their relationship. Even though the parties are no longer a couple, they still remain the children’s’ parents. Children do not have the emotional maturity to deal with complex adult problems. It is not uncommon for a parent to say that they think it is important that the children know “the truth” about the other parent. This can be deeply damaging and may even backfire. The children need to know that its ok for them to have a relationship with both of their parents.
Thinking you, or the court, can change your ex-partner
A family solicitor can help in many ways, and the court can make orders in respect of a lot of things, but changing the behaviour of one of the parties is certainly not something that is possible. If one party remains unresponsive, difficult and/ or unreasonable then no amount of court orders are going to change them.
Taking legal advice from family or friends
Friends and family always have good intentions and may have been through a divorce or dissolution themselves. However, any advice given by them should be carefully considered. Each case is dealt with on its own merits and circumstances so what may have happened to a friend may not apply to your circumstances. Friends and family should be used for emotional support only and legal advice should be taken from a qualified and experienced family law solicitor.
Believing that your friends are the only people that can see your social media posts
Social media has become more prevalent in divorce or dissolution cases in recent years and some posts have even gone to completely undermine one party’s case. The general rule to abide by is do not post anything on social media, or indeed write anything in a text message or an email that you would not want a Judge to see in the future.
Going straight in with an application to court
Court should be an absolute last resort. Any family judge presiding over a case will not know the parties present or their children and yet they will be making decisions that will affect the parties for the rest of their lives. Going to court is emotionally draining, risky and expensive. There are many alternative dispute resolution options and a family law solicitor can discuss all these with you.
Doing everything yourself
Whilst it is true that some parts of a divorce or dissolution process could be done by each party directly, it never hurts to get legal advice from the outset from a family law solicitor and find out which parts of the process should have solicitor involvement. It is also important to remember that neither party should sign and documentation without getting legal advice first.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Suffolk.