The divorce checklist

The decision to separate is not an easy one. It has significant implications both emotionally and practically and the issues that need to be addressed can be overwhelming. The issues that need to be addressed will depend upon your individual circumstances though this might hopefully be a useful guide to start with.

 Safety

If the relationship involved any aspect of domestic abuse, then ensuring the safety of you and any relevant child needs to be the primary consideration. Depending upon your circumstances, it might be appropriate for you to be moved to a place of safety such as a refuge. It may also be appropriate for an application to be made for a non-molestation order to protect you and any child from further harm or for an occupation order to regulate the occupation of the family home.

Children

Where there are children, there is a presumption that the children should have an ongoing relationship with both parents on a regular and consistent basis unless there are safeguarding concerns. At Birkett Long LLP, we fully support the recent guide prepared by Resolution for separating parents which can be found here https://resolution.org.uk/wp-content/uploads/2021/05/Parenting-through-separation-guide.pdf

Income

Consideration needs to be given to ensuring that outgoings can continue to be paid.

a) benefits

Separation is a change in circumstances that can result in state benefits becoming available. https://www.entitledto.co.uk/ is an independent website which offers a great calculator which allows individuals to get an indication of their entitlement and links to facilitate an application.

b) child maintenance

Where there are children and the parents no longer live with each other, the non-resident parent will have an obligation to pay the parent with whom the children live, for child maintenance. The amount can either be agreed upon or calculated following either parent making an application to the Child Maintenance Service.

c) Spousal Maintenance

Spousal Maintenance can be claimed where your income from all sources is insufficient to meet your outgoings and your spouse has sufficient income to meet their own needs and contribute towards yours. When this is considered on an interim basis it is intended to be a short term provision whilst the long term financial situation is considered in full. With that in mind, it is intended to cover the short term financial necessities.

Property

The property owned by your and your spouse needs to be identified and thought given to how it is owned. Where a family home is owned in the sole name of one spouse, it may be appropriate for a Matrimonial Homes Right Notice to be registered. Where the property is not the family home, then a different type of restriction/ notice will likely be advised. This is intended to preserve the asset whilst the financial aspects are given proper consideration.

Where the property is in joint names, you will need to consider whether your own the property as Joint Tenants or Tenants in Common. Married couples will often own a property as Joint Tenants. In the event that either of them were to pass away, it would mean that the property would automatically pass to the survivor. Where a couple have separated, they might prefer to make alternative arrangements for their share of the property if they were to pass away. In that situation, steps will need to be taken to ensure that the couple own the property as Tenants in Common and a Will shall also need to be drawn up.

Bank Accounts

The usual expectation is for couples who are divorcing to seek to maintain a financial status quo whilst the financial aspects are being fully considered. Joint bank accounts require special consideration especially where they have an overdraft facility because both account holders are individually able to access the funds and both would be liable for any debt even if it was caused by one person withdrawing the money.  Agreement should be sought as to the continuing use of any joint account and if necessary, consideration might be given to the account being frozen or requiring joint signatories for money to be removed.

Wills and spousal benefits

Often married couples will make mirror wills gifting their estate to their spouse in the event of their death. Where are a life insurances or pensions, it is also often the case that the spouse will be nominated to receive any death benefits.

It also remains true that there are many people who simply don’t get round to making a will. Where a person dies without a will, the division of their estate will be dealt with in accordance with the intestacy rules. These currently provide that a spouse would receive the first £270,000 of the estate and 50% of anything left with the remainder passing to their children.

Once a couple have separated, it is likely that they will wish to make alternative provision in the event of their death. It will therefore be necessary for them to make a Will and to speak to the insurance companies and pension providers and appoint alternative beneficiaries where possible under the rules of the scheme.

Seek Legal Advice

There really is no substitute to getting independent legal advice based on your specific circumstances. At Birkett Long LLP all of our family solicitors are able to offer specialist legal advice and we are all members of Resolution, an organisation of family law professionals who are committed to a Code of Practice promoting a constructive approach to family issues that considers the needs of the whole family.

At Birkett Long LLP, we offer all potential new clients the opportunity of a free 15min no obligation telephone call with our family solicitors in order to discuss your needs and consider how we can help you. You can contact me directly over the phone on 01206 217305 or drop me an email on [email protected].