Amicable exists to help separating couples achieve better outcomes for their families. Too many families emerge from divorce damaged and scarred. We can’t prevent divorce, but we think it is a sad event not a bad event, with the focus being on people being able to move on successfully with their lives.
Many couples aren’t aware that two years of separation can be used even if you’re still living under the same roof. The courts are aware that moving out sometimes isn’t an option financially or if you have children. If you’ve not shared a bed, cooked together or shared bills and bank accounts etc for two or more years – you can still use this as the reason if you both agree to the divorce. Find out more here.
If waiting two years just isn’t an option, here are some points to remember to remain amicable when using unreasonable behaviour.
The behaviour statement doesn’t influence your financial settlement or childcare arrangements
Many people think that the behaviour petition will influence how much they get in the settlement or who gets primary care of the kids post-divorce. This isn’t the case. The legal process of ending your marriage is an entirely separate process.
It’s not a public document
Behaviour petitions often contain very personal and sensitive information. Therefore, you can rest assured that divorce petitions are not publicly available (unless your case is escalated to the High Court which is very rare). The only people who will have access to it are; you, your ex, the courts and any third parties you use (e.g. amicable or lawyers).
You don’t have to write lots of harsh examples about your ex
You only need to give four to five examples, a list of milder examples that can be used are here.
Discuss what’s been written before you kick off the divorce
It is advisable that you discuss the behaviour statement with your ex so you/they don’t receive it through the post without warning. It’s never nice for someone to receive a list of their bad behaviour laid bare in black and white and can often spark a fall out if not dealt with in the right way. Seek help if you feel you need additional support in navigating this part.
The key to remaining amicable is to remember that often if you want to move on, unreasonable behaviour is the only option. Unfortunately, our legal system does not yet offer no-fault divorce as an option. So be pragmatic. If you or your ex are finding the behaviour statement difficult, it’s often due to the emotions involved, so seek advice and support so you dodge avoidable fallouts.
You’ve probably seen the coverage regarding Tini Owens in the news recently. This story has sparked debate over the last few years for a number of reasons. If you’d like a better understanding of the background, here’s a recap on the story and why it’s important.
Who is Tini Owens?
Tini Owens is well known because her application to divorce her husband of 40 years was refused by not only the High Court and but also the Court of Appeal. The case is now being reviewed by the Supreme Court who also rejected the divorce application.
Why was the divorce application rejected?
Tini used ‘unreasonable behaviour’ as the reason for the breakdown of the marriage. Her husband, Hugh Owens, contested the divorce as he didn’t agree that the examples of his behaviour satisfied the requirements of the law. In 2016, the High Court refused her petition, stating that her husband’s behaviour had not been unreasonable.
What happens now?
You can expect to see a lot of coverage in July about this case as on Wednesday 25th July 2018, the Supreme Court also rejected the divorce petition. This means Tini must stay married to her husband until 2020.
Why is it important?
There are divided opinions on this case. Some are outraged that Tini has been refused a divorce and therefore is being forced to stay unhappily married. Some believe that the behaviour examples were not sufficient enough for a judge to agree to the divorce. And some believe it is high profile example of why we should have no-fault divorce in England and Wales.
What is ‘unreasonable behaviour’?
Unreasonable behaviour is one of the five reasons that can be used in English and Welsh law to prove that your marriage has broken down past the point of repair. It is the most common reason used to get divorced.
What is no-fault divorce?
No fault divorce refers to divorcing your partner without the need to blame one person for the breakdown of the marriage. No-fault divorce currently does not exist in England and Wales so in most cases, couples are forced to enter a blame game to get divorced. A YouGov survey revealed that 69% people agree that people should be able to divorce without having to blame their spouse. So, why hasn’t the law caught up with the majority?
Read our negotiation tips to help you settle your divorce yourselves. We’ve also included some things to watch out for that might mean you’re better off getting some negotiation support from one of our divorce coaches.
Court costs have risen and it’s no longer possible to get legal aid in divorce cases (except in exceptional circumstances). This means a growing number of people find themselves negotiating their divorce settlement themselves. It’s often assumed that everyone can negotiate, but successfully negotiating a divorce settlement can be tricky. Not only do you need to understand what the law says about dividing your finances, but you also need to keep your emotions in check.
Make sure you’re ‘divorce ready’
This means dealing with the raw emotions and being in a place where you’re calm enough to think strategically and not focus on revenge, retaliation or making your partner pay for ‘wrongs’ of the past. You can check your divorce-readiness here.
Practice staying calm and in control of your emotions
Learn what triggers negative reactions in you – is there a specific point of disagreement that you and your ex have or is it something they say or do that winds you up. Whatever it is, identify it and practice staying calm when thinking about it or experiencing it. You could get a friend to role-play talking about the issue.
Negotiate from a position of knowledge
Do you know what the law says about splitting assets? Don’t guess, don’t rely on what happened in your friend’s divorce – find out. You can use our divorce tips page for general legal information or book a free 15-minute divorce advice call with one of our expert divorce coaches.
Be clear on what you want
…but accept you won’t get everything. Work out what you need. Think about what this leaves your partner with – a successful settlement has to work for both of you. Brainstorm or generate ideas and options before being too narrowly focused on one thing or becoming emtrenched.
Become an effective communicator
Everybody knows that its as much about how you say something as what the message contains that makes it successful. Use simple language, short sentences. Don’t tell someone what you’re not going to do or not going to accept… talk about what’s possible, what’s acceptable. Buy yourself time with the phrase ‘I’ll need some time to consider your proposal properly’. ‘What if’ is a great opener, and ‘what else’ (are you prepered to consider/offer) a great follow-up.
There may be some times when the negotiation playing field is too uneven for you to effectively mange a divorce setttlement yourselves. Maybe one of you is a much stronger negotatior because of their job. Or maybe one of you is in a more powerful position. In these circumstances, we recomend getting negotiation support. This ensures the person in the weaker position is protected. Here are some signs you need supported negotiation:
You or your partner cirtisise each other (rather than cirtique ideas)
There is contempt, personal attacks, sarcasum, body language such as eye rolling
You feel rail roaded by your partner and unable to get your point across
Your partner talks over you and never gives you space to say what you want
There is frequent outward hostility or anger from one or both of you
Entrenchemnt – one or both of you is/are not willing to see other’s point of view
One of you has narcissistic tendencies – e.g.excessively hauty, arrogant or manipulative
All or nothing thinking – extreme views are held and total disaster is predicted if things don’t go your/their way
Discussions centre on blaming each other rather than finding solutions
Things rapidly descend into an argument
If this all looks familiar then we can help you find a peacefully negotiated solution to your divorce. Talk to us, and we’ll help you assess what way forward is best for you.
A consent order is a legally binding document that sets out the financial arrangements you and your ex have come to. It details how you’re going to split any assets, debts, pension, and income you have once you’re divorced. It is legally binding which means it will protect you both if anyone tries to change their minds in future. It often has what is called a ‘clean break clause’ in it which protects the money or assets that you may earn or receive in the future (for example, pensions, inheritance, lottery wins or future earnings) from being claimed by your ex.
Most people are surprised to learn that a divorce doesn’t end the financial relationship with your ex. So, if you get divorced and don’t get a consent order your ex can still make financial claims against you in the future (even after many years have passed).
Here’s how consent orders work:
What information is needed to complete a consent order?
There are two parts to a consent order – First you will need to complete a Statement of Information or D81 – this is a snapshot of your current financial position. You will need to give the court a summary of the value of:
your assets (e.g. properties, vehicles, business assets and bank accounts)
your debts (loans, credit cards etc),
your pension (even if you have agreed to leave each other’s pensions you will need to provide a CETV – Cash Equivalent Transfer Value for each pension you hold)
your income from all sources (including any maintenance, benefits or rental income you receive)
The other document you will need to submit is the consent order itself. This is not normally a document you can draft yourself instead it should be properly drafted by a trained person as it will need to include certain legal clauses. You and your ex will have to decide how you will split your finances in a fair way. You can get advice on how to do this in this blog or by speaking to an amicable Divorce Coach.
The consent order sets out what you would like to happen to the assets you’ve listed in the D81. It may include what will happen to property, assets, debts, and pensions. Things like child and spousal maintenance and lump sums that’ll be transferred between you will also need to be recorded. It will also set out a timetable for when payments will be made, or assets transferred.
It’s always a good idea to include the rationale for how you’ve decided to split things so that the judge understands what you are seeking to achieve and can check that is fair and achievable from what is set out in the order.
You will also need for fill out a Form A (an administrative document that allows you to apply for the consent order) and if you are sharing a pension, then you will also need to complete a pension sharing annex or P1 form.
Who decides whether our consent order is fair?
The law does not have a defined formula for dividing assets. To make fair agreements between you, you must think about what the courts in England & Wales take into consideration: income, earning capacity and property needs as well as financial needs, obligations, and responsibilities. The starting pointing is a 50/50 split. But if one of you has a greater need, for example, because you are housing the children or earn a lot less, then the split may differ. You can make any agreement you like between yourselves (an informal arrangement) but if you want the court to seal a consent order and make it legally binding then a judge will have the final say on whether your agreement is fair in the eyes of the law. Our divorce coaches are specially trained to help you make a fair agreement
How long does it take?
This really depends on how organised you both are in gathering your financial information e.g. your pension CETV (which can take up t 12 weeks) and negotiating a settlement. Let’s say you’re completely agreed upon how you want to split things and have all the right information, you should allow six months at minimum for the consent order to be sealed by a judge.
Can you get a consent order without being divorced?
No. You will need to be a Decree Nisi stage of the divorce process before you can submit a consent order to the courts. It usually takes about 12 weeks to get to Nisi stage, so its worth considering getting started on the divorce and using the time it takes the court to process your petition to collect your financial information and negotiate a settlement.
Do I need a lawyer to do a consent order?
No, but you will need someone who understands the legal process and has experience in drafting orders as there are certain legal clauses that need to be included.
Telling friends and family you’re getting divorced for most people, is a frightening prospect. Being worried about people’s reactions is completely normal and totally understandable. Being prepared for tricky questions and negative reactions can make it much easier.
People breaking up commonly feel a sense of shame, as if they have ‘failed’. It is one of the most difficult experiences we can go through, a type of bereavement, and what you need most, is kindness and support.
When it comes to breaking the news, the most important people, because they are the most affected, are the children. It is vital that they hear it from you, and ideally before anyone else. Read our blog on telling the kids if you’d like some support. on this .
The next stage is family, then friends. If you and your ex can decide together who will tell which friends and family members, and if you can agree on what you’re going to say, it will help enormously.
You need to be aware that people have an unfortunate habit of saying inappropriate things, and often focus on how your breakup effects them or your children. Classic remarks such as ‘Have you really thought about it?’ or ‘But what about the children?’ are not uncommon. The best way to manage this is to be prepared. Be prepared to point out to them that your children are always your first consideration, and that what you need from them is to be supported, not undermined or judged.
Don’t agonise over other people’s reactions
You can never predict how people will behave. You can feel let-down by people you thought would understand, and surprised by those you thoughtless understanding. Remember that you can’t control how other people behave. You have your own emotions to deal with and you don’t need to take on their issues. People who react badly often do so because the thought of divorce frightens them, especially if they themselves are going through a difficult patch in their own relationship.
Be prepared for gossip, and be careful who you confide in
You may also find that some people feel embarrassed and don’t want to know too much, whilst others seem to relish the detail. Be prepared for gossip, and be careful who you confide in. If you feel that someone is pushing for too much information, you can politely tell them that you don’t feel ready to talk at the moment. A good friend is one who’s there to listen, but doesn’t pry.
Hold your head high
Finally, remember that you have nothing to feel embarrassed about. You have made a very difficult and brave decision that others may be too afraid to make. Hold your head high and don’t ever feel you have to apologise.