How to have a pain-free divorce

Having taken the decision to separate, or perhaps having had it forced upon you, there are lots of things to consider.

Lodders’ Caroline Dresden discusses how to have the pain-free route to divorce.

Do: make a new will

It is important to have a will, especially if you have children and assets.

Whether you now have a will which refers to your spouse, or no will, on your death before the divorce is final, the other party will receive a share of your assets.  If you do have a will, after the Decree Absolute, any references to your spouse are treated as if he/she had died before you – they get nothing.

Read more: No Fault Divorce active in England & Wales

Making a new will, while you are dealing with the divorce, may be a good idea, and making a will after your divorce is definitely a good idea.

Do: consider if you should sever the joint tenancy of your property

It is most likely, as a married couple, you own your home as “Joint Tenants” and have an equal right, to occupy and share the proceeds of sale. If either of you die, the survivor inherits the other’s share, automatically. That may suit you – pending the changes to be implemented following the divorce.

But if it doesn’t, consider whether to “sever the joint tenancy”. You simply serve a notice in writing on the other owner, giving notice your share of the house will pass through your Will and not by survivorship.

Do: consider protecting your right to live in your home

If your spouse owns your family home, consider whether you need to protect your “right of occupation”. You have that right, as a married person, and it continues until the Decree Absolute, which is the final order terminating the marriage. You can apply for the right of occupation to be extended, until all the financial claims are resolved, by which time your re-housing will be sorted out.

Protection can be informal, by asking for a promise not to force you to leave, until the everything is over, or formally, by registering a notice at the Land Registry.

It doesn’t cost anything to file a Home Rights notice and it tells third parties, such as potential buyers or lenders, you have a right to occupy and are due a share of any sale proceeds.

Do: work out your budget

Make sure you properly cost your future expenses, and carefully identify what it will cost you to rehouse – factor in solicitors costs, moving costs, replacement furniture and white goods. If you get that bit wrong, it can be very expensive.

Here are some suggestions of what not to do

Don’t: stop access to property without good reason.

Be aware, if a property is jointly owned, you shouldn’t change the locks without agreement. If you do, your partner can simply get a locksmith to change them again, unless there is an injunction in place.

At the same time, it is an offence to use or threaten violence, to enter a property without lawful authority, even your own property, if someone in the premises doesn’t want to give access and the person attempting to enter knows that.

Taking the law into your own hands in this way can be unhelpful and expose you to criminal liability.

Don’t: be tempted to peek at personal paperwork

The implied “duty of confidentiality” by which you share private financial and personal information with your partner, ends when a decision to separate is made. But when exactly is that? It can be before you even tell the other side of your wish to divorce.

While it may be difficult to identify, as soon as there is a formal separation in place – even when you are in the same house – you should not look at, retain copies or make notes about your partner’s personal, private information. The same goes for them, about you.

You could make notes, from memory, of any assets which you know were held, particularly where you think there may be an issue of non-disclosure.

Ensure your own paperwork is kept secure and private. Keep it at a friend or relative’s home, for privacy and security. Think about setting up a new email address, with a password completely unconnected to any you have used during the relationship, to make it as difficult as possible to hack.

Don’t: rush into a new relationship

Remarriage or cohabitation, or even the possibility of it, during the period of legal proceedings, could prejudice your financial application. For example, maintenance ceases on remarriage and sometimes on cohabitation. It is important you are fully advised about the implications of any potential relationship, before it becomes public.

In due course, having gone through divorce, you may want to consider a Cohabitation Agreement or Prenuptial agreement, to protect your financial position in any subsequent relationship.

Don’t: hide assets – you’ll be found out

It might be tempting not to give full and frank disclosure of all your assets, but it’s not worth it as you are more likely than not going to be found out. It will cost you far more in legal fees than you will be able to hide, in any court judgement, and in the time it takes to resolve the whole case.

More information

If you require bespoke advice in relation to your legal matters, our expert solicitors can assist you. For more information, or for an initial chat, please get in touch with the Family team using the form below.

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