Guest family law Q&A blog post which answers various frequently asked questions, based on family law in England & Wales and general legal guidance.
1. What is the legal status of prenuptial agreements looking ahead to 2013? Are they worth considering?
Since the Supreme Court’s decision in Radmacher v Granatino {2010} UKSC 42 and the review by the Law Commission, prenuptial agreements are becoming increasingly popular. The enforceability and legal status of a pre-nuptial agreement however, still remains in doubt.
Pre-nuptial agreements are not binding in the UK however; the case of Radmacher did take a significant step towards that possibility. The Judges decided that nuptial agreements should be given considerable weight if they were freely entered into by each party with full appreciation of its implications unless the surrounding circumstances deem it unfair to hold the parties to their agreement.
For a pre-nuptial agreement to be enforceable the contents of the agreement must therefore be fair.
The current position in the UK remains that it is the Court, and not the prior agreement of the parties, that will dictate what will happen to the parties’ financial arrangements upon Divorce.
Ultimately the legal status of prenuptial agreements is still debatable however. Divorce solicitors will advise clients on the basis of each case, but the Court is very likely to uphold a prenuptial agreement if the following is satisfied:
- Each party has received legal advice and there has been full disclosure of assets;
- There has been no undue pressure or exploitation and the agreement has been freely entered into;
- The agreement meets the needs of the party who is in a weaker financial position;
- The reasonable needs of any children are met; and
- The agreement has been carefully reviewed each time there has been a change in circumstances during the marriage.
Pre – nuptial agreements can therefore be very useful documents and it is anticipated will often reduce litigation. The agreements are worth considering if you have accumulated a significant amount of assets prior to marriage, you are to receive a significant inheritance or there are business assets that you wish to preserve. Pre-nuptial agreements are proving to be popular amongst people contemplating their second marriages.
2. How long does it usually take to get a divorce?
An undefended Divorce will take approximately six months to reach the Decree Absolute stage, which is the final Decree of Divorce.
If there are complicating factors such as the Respondent is defending proceedings, there is a disagreement regarding the Petition or financial arrangements have not been agreed etc, this can prolong the length of time and therefore, it can take up to a year or even longer if the financial issues are really complicated.
3. Can you get the other side to pay the divorce costs?
Divorces which are based on the Respondent’s fault namely the Respondent’s unreasonable behaviour or adultery; it is normal practice for the Petitioner to seek for the Divorce costs they have incurred to be paid by the Respondent.
As long as the Petitioner has requested in the prayer section of the Divorce Petition for the Respondent to pay the costs of the Divorce, the Court will normally order the Respondent to pay.
If your Divorce is based on a non – fault ground such as 2 or 5 year separation, the Petitioner can always still request that the Respondent should pay the costs but it may result in the Respondent refusing to grant his consent and thereby the resulting in the Petition being unsuccessful. Therefore in these circumstances it is up to the parties to reach their own agreement. More often than not in these circumstances the parties agree to share the costs equally.
4. What advice would you give to someone considering getting a ‘quickie’ online divorce?
There is no such thing as a ‘quickie’ divorce. It is a term which is incorrectly but frequently used by the media. Whether you instruct family solicitors, act in person or use an online service, the same Court procedure is used and the Divorce process will not be any quicker.
Online Divorce services tend to use generic Divorce petitions which are not tailored to individual needs and therefore, it enables some internet based companies to offer discounts. As the saying goes, “You Get What You Pay For”. We would never advise anyone to go for the cheaper option as cheap is not always good. Divorce can be a very stressful period. Therefore, face to face advice and support can prove to be critical. Good solicitors place strong emphasis on providing an individually client focused, sympathetic, and understanding service which simply would not be available from anyone offering a ‘quickie’ divorce.
It is also worth noting that it can cost a significant amount to correct an improperly drawn Petition once it has been issued, in most case more than the fixed fee which can be offered at the beginning of the matter.
5. Is mediation worth considering to avoid the courts?
Since the 6th April 2011 it has been compulsory for couples to undergo mediation to resolve any disputes before resorting to the Courts, save for cases where there is domestic violence. In light of this, in the majority of cases the parties will have to consider mediation.
Mediation can be more cost effective than the Court procedure and is useful when both parties are willing to negotiate and there has been a full disclosure of assets. If one party is being deliberately uncooperative, mediation will do little to help the parties reach a resolution and the assistance of the Court may be required.
This article was written by Manak Solicitors, a leading firm of family and divorce solicitors in Kent. All our family & matrimonial solicitors are members of “Resolution” panel and the family & matrimonial partner at Manak Solicitors LLP is a member of “Law Society Family Law Advanced” panel both of which are accreditation schemes which places strong emphasis on mediation.