A guide to divorce dos and don'ts

Catriona Attride: So thank you, Amrit and Drew for joining me. I hope you're both okay.

Amrit Hunjin: Very well. Thank you, Catriona.

Catriona Attride: Great. So, as a start-off, can you tell me if a client is considering separation or divorce, what should they do? What should they be thinking about?

Andrew Dennis: Sure. I think it's important to take early advice from a lawyer. I think it's best to get that advice at an early stage from an expert, as that allows parties in a divorce to know exactly where they stand, and to understand the steps involved within that process.

I think I'd advise anybody, if a marriage has broken down, please don't bury your head in the sand. I think it's far more sensible to have some level of knowledge about the process, as well as the potential outcomes than to not to.

I think it's also important to be realistic in terms of the timescales involved. The divorce can take at least six months to progress, and this will be longer if, for example, one party refuses to cooperate or if there are any financial or children matters that you need to consider.

Catriona Attride: And what sort of matters might you need to consider that could cause a delay? What can you do to make sure that you're in the best place so that it doesn't cause a delay?

Andrew Dennis: Sure. I mean, realistically, sometimes another side can refuse to engage with the process or simply refuse to accept that the marriage is over.

Catriona Attride: So burying the head, as you said before.

Andrew Dennis: In fact, yes. You're quite right. No, exactly. And bury their head in the sand. I think, in terms of being in the best position possible, parties should try and get a fighting fund in respect of their legal fees. Realistically, there's one shot to get this correct. And if they sought out a solicitor, they will discuss with them timeframes and strategy and costs and the like which, in my opinion, is another reason why a party should seek advice in the first place. And any cost will depend on complexities.

Catriona Attride: And by a fighting fund, you're talking about a war chest, a pot of money, to get you going and to see you through the early stages?

Andrew Dennis: Realistically, yes. However, I think any party should think long-term as well as short-term. Costs is a moveable beast, realistically. Costs will depend on complexities within the case. And I would say that most costs are going to be incurred within financial as well as children negotiations.

As in general cases, divorce is a paperwork exercise. So I think any party should realize that within legal proceedings, and if they're issued in respect of either finances of children, then costs are likely to increase, and anybody should prepare for this to happen.

Catriona Attride: And how can people keep their costs down?

Andrew Dennis: I think, realistically, parties should try, as difficult as it may be, to be as amicable as possible. In the long run, the aim should be to try and put aside any bad feeling towards the end of the relationship, as it can't guarantee but it can reduce timescales and costs involved. So it's in the party's best interest.

I guess I would suggest that any party take a step back and think about the long-term bigger picture, as opposed to making any snap decisions based on anger, which is entirely understandable at the end of a relationship.

Catriona Attride: And you must find that in your role, that you spend quite a lot of time talking people down, I suppose, when they are feeling angry and hurt, and all the other things that come with a relationship breakdown.

Andrew Dennis: No, you're quite right. Hey, it does happen a lot. It's entirely understandable. Feelings do run high at the end of the relationship. So I don't think any potential party or client should be ashamed of feeling particularly tense at the end of a relationship. It's simply one of those things, and it's something that we are trained to deal with.

Catriona Attride: Absolutely. Do you work closely with any divorce counsellors who you can signpost clients to if they need it?

Andrew Dennis: We do have details of parties that we can signpost to. We can also have information in respective mediation for people to attempt to talk through their issues, not only at the end of a marriage but also if they are considering the end of the marriage.

Catriona Attride: And is mediation encouraged? Because I think a lot of people have this view that mediation means that they're going to be stuck in a room with the other party who they can't bear the sight of, and that puts them off. Is that how it works?

Andrew Dennis: Realistically, it's a process whereby firstly, a party would go to the mediation session and discuss their issues individually with a mediator. And if the mediator believes, having spoken to both parties, that the situation is suitable for mediation, then the long-term aim is to get both parties in a room.

However, it doesn't work for everybody. However, it does work for some parties, and it is encouraged because you are not able to issue either children or financial remedy proceedings without at least attempting mediation first.

Catriona Attride: Yeah, which is understandable.

Amrit Hunjin: Yes. Mediation is an independent process where your mediator will most likely be a solicitor who is also qualified in mediation. And, as Drew said, we'll look to get the parties around a table together.

If there have been circumstances where one party might feel bullied or intimidated through that process, the mediator can provide shuttle mediation, for example, so the parties aren't physically in the same room but the aim will still be to facilitate a constructive discussion.

Catriona Attride: Good. I think that's reassuring.

Amrit Hunjin: Yeah. There are ways that the process can be adapted, depending on the specific circumstances. And it's certainly useful to try to get the right mediator to help things to be resolved as amicably as possible. But again, correspondence from solicitors should always look to try to lower the temperature and deal with things by way of agreement. It's our job to help clients rather than fan the flames.

Catriona Attride: And you must have times where your client wants to be reasonable and you're trying to lower the temperature, as you say, but then you have on the other side, perhaps the lawyers who are taking a very aggressive stance. And that must be really difficult for you guys when you're trying to dial the temperature down a bit. How do you find that?

Andrew Dennis: It's not an ideal scenario and, in our opinion, correspondence should try and lower the temperature, where possible. I think we feel that it's in no party's best interest to be aggressive, as it's only going to increase bad feeling and-

Catriona Attride: And costs.

Andrew Dennis: ... realistically, may well cause the other... Exactly. And to cause the other side to dig their heels in. So we would always say be as conciliatory as possible, as it's far more likely to take place when the parties communicate properly.

We are resolution-accredited, so we always try and deal with our cases as amicably as possible. However, obviously, we'll try and be as firm as necessary to fight any client's best interests, if at all possible.

Catriona Attride: So I suppose what's really interesting, isn't it, is that all of this is down to communication. And I suppose one of the things that naturally breaks down with a relationship is the communication, so you're like the bridge to rebuild, aren't you?

Catriona Attride: And so, what's the best way to commence matters? So, obviously, we've got the correspondence, we've got the mediation. What else are we doing? Because I suppose there are exchanges of information that we need to look at and that sort of thing.

Andrew Dennis: Yeah, quite. So, in terms of the divorce itself, we'd advise that you draft a petition and then send this over to the other side, particularly prior to issuing, to try and agree on any position in advance. This usually avoids any knee-jerk reaction or any upset in respect to the petition's contents from the other side. And obviously, it prevents any additional animosity as well.

Catriona Attride: Is there any advantage to being the issuing party? Is there an advantage to getting in there first or do parties tend to agree who's going to do that?

Andrew Dennis: I don't think that there's any advantage by starting the process. Realistically, as hurtful as it is, the court isn't usually interested in the exact reason for why-

Catriona Attride: No.

Andrew Dennis: ... the marriage has broken down, only that it's broken down irretrievably. I think the court is more concerned as to what the resources are between the parties, and how these are going to be divided fairly, as opposed to who started what or who caused the end of the marriage.

Catriona Attride: Yeah. So I suppose the blame game actually isn't going to get anywhere. I know when I've spoken to people before, where perhaps there'd been adultery, they think that because of that, they, therefore, should be getting a larger share of the pie. And of course, that just isn't relevant because the court doesn't blame, do they? It is what it is.

Andrew Dennis: No. You're absolutely right. I guess that what we'd say is that any spouse that's caused the breakdown is highly unlikely to achieve a less favourable outcome. And I'd also say that the reasons for divorce don't usually impact on arrangements for children either. Whilst somebody that issues does have small control over the progress of the divorce itself, I wouldn't advise any client to revisit the breakdown of the marriage again.

Catriona Attride: No.

Andrew Dennis: Once the paperwork's filed, if the parties are satisfied with the court that the marriage has broken down, then the parties could then focus on the other aspects. The divorce paperwork will just carry on in the background.

Catriona Attride: Yeah. And I'm right in thinking that you can actually finalize the divorce but still have outstanding the financial issues and the children issues.

Andrew Dennis: Yes. The divorce only deals with dissolving the marriage itself. The financial claims themselves remain open until they're dealt with by a court.

Catriona Attride: So you could get divorced pretty quickly but actually, still be tied together with the money.

Andrew Dennis: Quite. Which is the most important time to speak to a lawyer. So I would advise any client to focus their time, energy, and cost on that aspect, as opposed to the divorce itself.

Catriona Attride: And where we've got a couple who, say, actually are splitting up quite amicably and they've agreed on things between them quite well, and they know how they're going to divide assets, et cetera, do you still recommend that they take some advice to make sure that the order... You know, everything's done properly so that no one can come back later?

Amrit Hunjin: Absolutely. I think, even where there has been an amicable discussion between parties directly at an early stage, any agreement will still need to be formalized within a divorce and court-approved because an agreement on paper or a verbal agreement between them will not be legally binding. So it needs to be formatted in the right way.

But also, it's important to effectively check with any client that their understanding at the time that they went into that agreement is actually correct because we need to assess the matrimonial finances holistically.

And it's important that any decision, whilst it's client-led, and we certainly want our clients to feel that they can make informed decisions, we need to ensure that they have all the facts available. So a client may say to you that they trust the position and that they are happy to stick with any direct agreements, but our job is to make sure that they are aware of all the circumstances, what they can and can't do, and they can make that informed decision properly.

Catriona Attride: Yeah. And I suppose it is all about informed decisions, isn't it? So, I mean, the financial bit is obviously a big part of the case, isn't it? And you must come across people who either say to you that they have hidden money or spouses who think, when they see disclosure, "Well, actually, I'm sure they had another account there or what about their pension or what about this?" What's the position with trying to be clever, I suppose?

Amrit Hunjin: Yeah. Yeah. So it's not uncommon, and it's not always with malicious intent that a client may ask you at the outset if they can just give this money to their Mum and Dad or there's a property sale that they are... or a property purchase that they're dealing with. And they may ask if the assets may be held with somebody else or they tell you that they don't think it's relevant and effectively want to exclude it from the discussion at the outset. And the clear advice is that we cannot advise a client to do this. And, in the worst case, if money or assets are transferred out to family members or other people, then if the spouse is aware of that, then the court can really clamp down on that action very robustly.

Catriona Attride: And do they penalize you for it?

Amrit Hunjin: Quite possibly. Yeah, yeah. I mean, certainly, it sets the tone of any negotiation and litigation. The courts can be asked to step in on an urgent basis, and ultimately freeze assets and monies, and control how those matrimonial funds can be used until a financial settlement is reached.

For example, we had a client who had sold land held by a company and it was the best part of a million pounds that ultimately the court sought to freeze. And it would have been frozen for probably the best part of 18 months before it's going to be distributed to husband and wife. And the reason that the courts could be so robust is that they weren't sure that the money wouldn't disappear sideways?

Catriona Attride: Oh, right.

Amrit Hunjin: And be spent. And, effectively, if the judge is satisfied that one party's actions are being taken solely to keep the money out of their spouse's hands, it essentially means that the court has got no option but to effectively court-order freezing of that asset or maybe more, depending on how they think one party will behave. And ultimately, that party's credibility could be undermined throughout the rest of the negotiations.

Catriona Attride: And I suppose that's quite reassuring, isn't it, if you're acting for a party who feels like their ex might do that sort of thing? At least they know that they have got some protection from the court.

I mean, I suppose in a similar vein, I imagine you have one party sometimes trying to exercise control over the other by threatening not to continue paying the mortgage or not paying the bills or school fees or all of that sort of thing. Again, the judge... The court probably don't like that sort of behaviour either?

Amrit Hunjin: No, no. That's correct. So, at the outset, it's very likely that a divorcing couple will have a level of financial intermingling. So there will be joint accounts and money that's accessible to both parties, and money that funds their joint expenses like mortgages, like utilities, like school fees. And, at the outset, one party may say, "You know, I just don't think it's fair. I want to immediately stop those contributions." But changes to financial circumstances on a day-to-day basis shouldn't really be changed without notification. So the contribution should ideally remain the same. So, if you've always paid 1,000 pounds into a joint account because that helps the household to take over, then that should probably continue.

And, at the same time, if you've not made excessive withdrawals from joint accounts, then money shouldn't just be pulled out on a unilateral basis. And ultimately, if money is withdrawn and we don't know where it's going to go, the court can step in and issue those freezing injunctions that we just spoke about.

Catriona Attride: So clearing out the joint account.

Amrit Hunjin: Absolutely. And if we're not sure where it's going to go, it can be frozen, it can be controlled, and again, set the tone for how this party is going to be viewed.

And, at the same time, if contributions are not made and one party says, "Okay, you are not going to be supported financially in the same way that you have been historically," and it leaves one spouse or maybe the children without enough money to meet the very basic day-to-day costs such as food, utilities, petrol costs, for example, then the court again can step in and make an emergency order for interim maintenance.

So, the aim is, effectively, to try and preserve the pots until the parties are fully informed as to what the overall financial settlement would look like.

Catriona Attride: And how do you get to that point? How do you start to gauge what a financial settlement would look like? You've got to collect the information, I suppose, from each side.

Amrit Hunjin: Yes, yes. So, financial disclosure is the key. And, as Drew said, time and energy and the legal cost is most likely to be incurred in this exercise.

So, at the point that we would be instructed by clients, we always tell them that financial disclosure needs to be given on a full and frank basis, and it's an ongoing duty. So essentially, a client needs to be transparent and let the other party know of their current financial position, perhaps some of the historical matters. Disclosure in the first instance goes back a year, so you would expect bank statements to go back at least a year. It could be that the court orders or solicitors agree for it to go back further if we think that there was a relevant incident or change of circumstances that went back further than a year.

Amrit Hunjin: And we can also ask that the parties let us know about things that are foreseeable. So if there is a business sale or there is an imminent retirement, and there will be an immediate change in financial circumstances, say, in a few weeks' or months' time, then the disclosure should also reveal what changes or finances are going to be expected.

Catriona Attride: Okay. So quite a lot to cover there. So, once you've done all of that, you've shared the information, et cetera, is it just the case that everything's 50/50?

Amrit Hunjin: Not necessarily. It's quite rare that we end up with outcomes that divide everything based on an equal basis. The legal position is that the starting point for capital... So that includes property, cash, any tangible assets, and perhaps liquid assets as well, such as business interests, and also pensions... They will all be treated equally in the first instance. But there are various factors that lawyers and the courts need to consider, and they may well justify a swing in one party's favour.

So these will include things like the party's earning capacities, the contributions that they've made, and then the marriage, financial resources available to them, the lifestyle that they may have lived. But the main reason that equality will be departed from is because of needs. So this is to ensure that both parties have got enough to, say, buy another house and meet their day-to-day outgoings and the needs of the parties and, of course, the needs of the children will be really, really important.

Amrit Hunjin: It's very-

Catriona Attride: So I mean, it's very much about fairness.

Amrit Hunjin: Yes, yes. Any financial settlement will always need to meet the fairness test. It is a discretionary exercise. But as long as an outcome is within the parameters of being fair, then it will be either imposed by a judge or, if a voluntary agreement is reached between the parties, then it will be effectively checked by the judge to ensure that it gives a reasonable outcome. And a judge can always step in at a later stage with any questions if they think it's ultimately not fair. So I think clients should expect to disclose everything. It doesn't mean that everything will necessarily be shared or that it will go on a 50/50 basis, but do be prepared to give a full and transparent picture of financial circumstances.

Catriona Attride: And where do the courts stand on inherited wealth, pre-acquired wealth, anticipated inheritances, those sorts of things? Have you got a chance without having a prenup of keeping hold of those things? Or is everything up for grabs?

Amrit Hunjin: In the first instance, as I said, everything needs to be disclosed. So if there is inheritance sitting in an account or one party expects to inherit quite soon, if they have a very ill family member, then this should be set out clearly.

But there are lots of cases that we deal with, where there are pre-marital assets. So, for example, family businesses that haven't grown as a result of the assets of the marriage. It may be a farm or business that's passed down for generations and, effectively, the spouse has had nothing to do with it, for want of a better way of putting it. Or it may be that the parties might have separated for a period of time and they've managed to build up some savings afterwards. And it is possible though, these non-matrimonial assets, effectively to be ring-fenced and excluded from sharing. And so that includes inheritance.

Again, as Drew said, the early advice on these issues is really important because it can be quite a complex argument to say what is or isn't in the pot. But certainly, assets that have come or arisen outside of the marriage, or before or after separation, they can be excluded from sharing. They need to be disclosed so that there is transparency. And generally, the only way that those non-matrimonial assets will be dipped into and put back into the pot is to meet those needs that we talked about. So to make sure that both parties are able to be housed and have enough to live on, and ultimately, the needs of the children will be met. But certainly, they can-

Catriona Attride: Yeah, of course.

Amrit Hunjin: ... They can come be ring-fenced if there's enough to go around without including them.

Catriona Attride: And do the courts always have to be involved in financial settlements?

Amrit Hunjin: Not always. As we've said, an amicable and voluntary process is always preferable. And the way that we would want to approach it is to get the requisite level of disclosure from both parties, weigh up what the overall pot looks like before we can divide it and advise on how it should be shared. And effectively, it would then go to a judge to hopefully be rubber-stamped without any queries. But this all depends on both parties being sensible and reasonable. And if there is difficulty in obtaining transparency from one party or, ultimately, the parties are at a stalemate and they are poles apart in what their expectations are, then it can be really useful to ask a court to manage the timetable for disclosure, or even manage the expectations of one or both parties.

And particularly, when we get to the second hearing in financial remedy proceedings, which is called the FDR stage, the judges will really roll their sleeves up and get stuck in with giving recommendations as to how the case should settle. And quite unusually, the courts will have sight of any proposals that have been made, even on an off-the-record basis, and they will be able to give a steer on what the outcome should look like.

So I think, regardless of whether you're in court proceedings or you're dealing with things on a voluntary basis, parties should be prepared to really engage in discussions and put forward sensible proposals to try and resolve matters as quickly as possible and, hopefully, achieve a financial clean break as soon as possible as well.

Catriona Attride: Yeah, of course. I mean, do the courts ever actually turn around and say, "Yeah. I appreciate you've all gone through all this hard work and you've come to an agreement, but actually I don't agree?"

Amrit Hunjin: It has happened. It has happened before. So, if a financial agreement is reached by consent and we send a copy of that to the judge for approval, it needs to be accompanied by a financial summary form, which is called a Statement of Information. And that form gives an overview of what the party's finances look like. And it provides the court with the opportunity to really assess the fairness terms of that settlement. And then, in most cases where both parties have  advice and there isn't a huge imbalance in terms of the finances, then the judge won't have any queries. But there have been occasions where a judge will say, "Well, one party has got a far bigger pension than the other, and there's no adjustment made," or, "How does this business fit in? Why is there no additional payment made?" So a judge won't impose their own view but they can raise questions.

Catriona Attride: So there's a check and balance there.

Amrit Hunjin: Absolutely, absolutely. So, even on a voluntary basis, you know that the court will ultimately not sign off on anything that isn't fair. So, do we have proper assurance that that is the thresholds that the court needs to meet, the fairness one?

Catriona Attride: Yeah.

Amrit Hunjin: So it's certainly not helpful at the start of the process if one party is saying, "I will take him/her to the cleaners. I will rinse them for everything I can," or, "He or she isn't going to get a penny, because ultimately-

Catriona Attride: Well, and I'm sure you hear that a lot.

Amrit Hunjin: Oh, absolutely! But ultimately, the process is designed to take the heat out, is designed to keep it quite clinical, really, and give you an overview of all the finances, so you can get to a fair position at the end of it.

Catriona Attride: Great. So we've looked a lot at the financial side of things, but there is often children to think about as well. And I imagine that things do get acrimonious. If you don't manage to keep things amicable, it's going to be very difficult to protect the family, to protect the children.

So, what would you advise a potential client to do to, to try and take the heat out again and all the rest of it, but in the context of the children?

Andrew Dennis: Sure. I think firstly, the parties shouldn't use children as weapons. I guess we'd advise to keep the children away from any legal proceedings and any arguments so that they can be allowed to be children.

But children need to have constructive role models. And I guess seeing parents arguing is not going to be very helpful, and it's going to impact negatively on them. So keep any arguments away from those children.

I guess what I'd also say is that no matter how the relationship is going or court proceedings are going, in respect to either divorce or finances, we say that this shouldn't impact on any arrangements for the children and people should be encouraged not to hold back on contact just because negotiations or any litigation isn't going very well.

I think what is in the child or children's best interest should be any party's biggest consideration, as that's what the court is going to be most likely interested in.

Catriona Attride: And how do you manage that? Because the reality is, and I mean, I've seen it with people I know, professionally and personally, where they do use the children and they do stop contact because they're not getting what they want or they don't like their new partner's choice of new partner, all of that sort of thing. How do you get around that? Or how can you help support a client to see the error of their ways sometimes, maybe?

Andrew Dennis: Sure. Realistically, it's a case of appealing to the client's better nature and maturity. I guess one way around it is that if the children are old enough to have a say in their arrangements, then they could be consulted. But we would always advise children... parents rather... to take the lead in terms of taking responsibility for any living arrangements and contact.

Whilst we encourage positive relationships with both parents at all times, and we shouldn't demonize the other parent, is, as I said before, it's clearly not going to be good for any child's emotional wellbeing for them to be influenced by their parents. And it's certainly not going to be viewed positively by any court, so they don't do that under any circumstances.

And a key point would be to avoid social media under any circumstances, in respect of either the ongoing separation or children arrangements. Any court proceedings are supposed to be private and confidential and a key topic, and you see more and more in the present era, as it were, is don't broadcast over social media. Because again, the courts are certainly going to not look favourably at it.

Catriona Attride: That's really good advice, isn't it? Because in the heat of the moment, you can imagine Mum posting their fury on Facebook, and that coming back to bite them later. And so, how do the finances tie in with the children? How does that affect them?

Amrit Hunjin: Generally, the finances and the children are separate issues. So, you might hear a court's various barristers and solicitors saying to their clients, "Cash and kids don't mix." But there is an inevitable overlap. So, whilst the arrangements for the children can't be used as leverage for finances and vice versa, where the children live could have an impact on the financial arrangements. So this would tie into housing and income needs that we spoke about.

: But also, if there is a non-resident parent, so there isn't a shared care arrangement and the children spend most of their time with Mum or Dad, then the non-resident parent has an obligation to pay child maintenance. And child maintenance will be discounted if there are overnight stays with that non-resident parent. Indeed, if there's shared care, there may be no maintenance payable at all. So we do sometimes see clients or their spouses wanting to structure the arrangements for the children to give them a financial advantage. But certainly, that approach would be very heavily criticized by the court.

And a parent should not take that approach because it wouldn't meet their best interest. The children should be encouraged to have positive relationships with both parents, regardless of how it affects the money. But the impact, really, is to look at how a financial settlement would cater properly for the children, and ultimately their day-to-day arrangements, their holiday arrangements, their turn-time arrangements, should be structured in a way that will allow them to flourish, meet their educational needs, meet any health or development needs that they may have, and ultimately not undermine the role of either parent in their lives.

Catriona Attride: Yeah, that's really important, isn't it?

So I think this has been great, you two. Thank you so much. I mean, I've got some takeaways from this, and I think that the main themes that come out here are, if you are facing a relationship breakdown, take some early advice. Even if you're not ready to press the go button, get a stay on what's coming, and what you need to think about.

I think also... It's coming through loud and clear... Try and keep it as friendly as possible, being open and transparent with each other. And most of all, I think being patient.

Andrew Dennis: Yeah. Yes, that's correct. Sometimes the process can get a little bit more difficult throughout the disclosure stage before it gets better. So I think just clients, yeah, I think have to undergo and undertake a process, but there will be light at the end of the tunnel and it will be, essentially be, the best way, and sometimes the only way through proper negotiations, and sometimes court proceedings, to get to a fair outcome. So it can be a bit of a necessary evil.

Catriona Attride: Yeah. And it sounds like you guys are there to lead through that tunnel towards the light at the end.

Well, thank you both very much. I hope you, the listeners, have found this a good introduction to the things that you need to think about. And the team are always available if anyone who is listening has any specific questions that they want to raise.

Thank you for listening to Talking Family and Wealth.

To find out more about the series, please visit gateleyplc.com/talkingfamilyandwealth From here, you can subscribe for all updates, meet our speakers, and get more information on all of the topics being discussed.

In this episode, Catriona is joined by family lawyers Amrit Hunjin and Andrew Dennis to discuss the dos and don'ts of divorce, providing insight to stand people in good stead if they are contemplating going ahead with the divorce.