How To Have an Amicable Divorce

This article first appeared as an interview feature with Nina Lake in Sheerluxe in February 2023

In your experience, is it possible to have an amicable divorce?

Absolutely. If both parties are focussed on maintaining positive lines of communication (either directly with one another, or if that is challenging, via their solicitors) and carefully consider each-others, proposals and/or concerns about the future whilst having a mutual focus on reaching a fair and reasonable settlement, there is no reason at all why resolving arrangements on divorce need be acrimonious. This has been assisted with the new 'no fault divorce' regime which was implemented last year. This new regime means that divorcing couples no longer need to attribute blame to the other or remain married but separated for years before they would be eligible for a divorce.

Can you explain what a 'no-fault' divorce is and what it allows for?

The 'no fault' divorce regime replaced the previous divorce structure which required couples to rely on either a significant period of separation, desertion, adultery or unreasonable behaviour in order to proceed with a divorce. The law now requires no element of blame to be apportioned to the breakdown of the marriage and instead, either a sole or joint application can be made to the court for a divorce to proceed. If a sole application is made, the other party would have 14 days to return an acknowledgment to this. There is then a 20 week 'cooling off' period, following which a Conditional Order can be applied for, which confirms that the parties are eligible for a divorce on the basis of their application (for example, that they have jurisdiction to divorce in England and Wales). After a further 6 weeks, the Final Order can be applied for, which is the Order that actually dissolves the marriage and is the final stage in the divorce itself.

What's the process of getting a 'no fault' divorce? Do you still need a proper lawyer or does a mediator suffice?

A divorce can be applied for either directly by the individual wanting to divorce, using the courts online platform, or by instructing solicitors to do it for them. Although the process has been simplified to make it more user friendly for people to do themselves, the process can still be quite stressful or daunting for some and so it is not uncommon for solicitors to be instructed to do the divorce for a client to take away some of the burden of having to navigate the rules. A mediator may be able to assist couples who can't decide whether they want to issue divorce proceedings in one of their sole names, or jointly, but generally speaking, mediators tend to assist clients in relation to sorting out their financial arrangements on separation, or arrangements for children. The 'no fault' divorce process itself is actually fairly straightforward and so there are few occasions where a dispute might arise in relation to the process.

What are some of the advantages of mediation?

Mediation can be an excellent way for separating couples to discuss matters directly with one another, but with the assistance of a professional third party to help diffuse any tensions or assist with navigating negotiations productively. Those who attend mediation successfully often find that they keep their costs down significantly in sorting out their divorce and financial arrangements on divorce and are also able to reach a resolution far more swiftly than they would do if court proceedings are issued. It can also be a great way to maintain flexibility with discussions as it is possible to book mediation sessions at times which best suit the parties. Another attraction is that there is complete confidentiality in mediation and so, particularly for high profile individuals, it can be a great way to keep details of their divorce out of the public eye.

What considerations might you have to consider as an older couple in say your 50s or 60s if you choose to divorce?

The process for divorcing and dealing with your financial arrangements on divorce is the same, no matter your age, but when considering what a fair and reasonable financial settlement might be for older couples, certain factors must be taken into consideration. This includes, for example, both parties retirement plans and how you might be able to meet both your income and capital needs on retirement. It is likely that older couples will have a much reduced mortgage earning capacity which could impact on the value of the property you can afford to buy following divorce. Other considerations, such as the costs of care, might need to be factored in as well as the impact of sharing any pensions with your soon to be ex-spouse and how this would impact on each of your respective incomes on retirement. Divorce can also impact on your will and so it is imperative for wills to be reviewed as part of the divorce process too. This goes for a divorce at any age, but is perhaps even more pertinent for older couples.

Any advice on reaching a fair and amicable financial settlement? 

In order to reach a fair settlement, it is important, in the first instance, to ensure you know what the lay of the land is in terms of your 'matrimonial pot'. This means ensuring that there is some form of financial disclosure exchanged and you are content with what your respective current financial circumstances are. Once this has been done, in order to maintain amicable relations whilst trying to reach a fair settlement, it is important to be realistic in terms of what you and your spouse have and what you are legally entitled to going forward. This is where each getting independent legal advice can be invaluable and should not be viewed as an acrimonious step. It is also important during this process to listen to any reasonable concerns that the other person might have and to try and accommodate these within settlement proposals, without disregarding your own reasonable needs and concerns. Lastly, it is important not to view every step taken by your soon to be ex-spouse as an acrimonious one. If they get legal advice, don't agree to your first offer or even decide to issue court proceedings, none of this means that things have to become acrimonious.

As a woman, perhaps who hasn't worked or earned their own money for some years, what are the main considerations to think about when trying to reach a financial settlement in a 'no fault' divorce?

Ongoing spousal maintenance claims have famously been referred to as no longer being 'a meal ticket for life'. Generally speaking, gone are the days where very long (sometimes lifelong) maintenance orders made. Women who have not worked during the course of the marriage are now expected to maximise their earning capacities, post-divorce, in order to meet, or at least help with meeting, their income needs. This does not mean that there is an expectation that a non-working wife would immediately re-enter the workplace, full time with an unattainably high salary, but rather that she should be expected, in due course, to contribute to her own economy in some form. This might mean several years down the line when young children are a bit older or allowing for a period of retraining, or for there to be an acceptance that this would be on a part-time basis. There are, of course, cases where it would be entirely inappropriate to expect a non-working wife to have her own earning capacity in the future, for example if she is at, or close to retirement age, is in ill health and cannot work or if the parties resources were sufficient enough that, in fact, there was no need for her to work. Each case turns on its own facts, and there is no one size fits all.

Aside from how a non-working wife might meet her income needs in the future, consideration would also need to be given to how she might meet her capital needs, such as how she might rehouse with limited or no mortgage earning capacity and whether she should be entitled to a larger share of the parties capital to ensure her reasonable housing needs can be met. In addition, if she has not been working, it is unlikely that she would have been contributing to her future retirement fund and so there would need to be careful consideration of any pensions, and how these should be shared.

How should you react if your soon-to-be ex suddenly changes tack and decides to go to court?

Firstly, don't panic! Court proceedings can be a really great way to focus everyone's attention on resolving matters. The court will first set a clear timetable for financial disclosure and getting in place all the information required in order for productive negotiations to take place. There is often months between the various court hearings, and therefore, plenty of time for out of court negotiations, or even negotiations at court on the day of a hearing. If agreement cannot be reached, it also provides a 'long stop' date for matters to be resolved, being a Final Hearing at which a Judge will ultimately decide on what a fair and reasonable outcome will be. It is worth remembering that just because court proceedings have been issued, it does not mean that negotiations have to cease and that an out of court settlement is no longer possible. On the contrary, it can actually encourage couples to reach a settlement to avoid the need for ongoing litigation.