Is it ‘D-day’ for you?

LEGAL TALK with Elmhirst Parker Solicitors

January is traditionally a time of new beginnings with resolutions made to do things differently and start afresh.

Typically, plans might include starting a diet or exercise regime, making more time for friends or family or maybe changing jobs. But it can also spell the end of a marriage if, sadly, a relationship is deemed to have run its course.

The recent phenomenon of ‘Divorce Day’ in January, generally the first Monday after New Year, is a date when law firms report a surge in divorce enquiries and subsequent petitions. Researchers suggest that while troubled couples may view holidays as a time to stand together for children and an opportunity to mend relationships, the reality is that proximity exacerbates tensions and may be the final straw for many.

If mediation isn’t an option or hasn’t succeeded and minds are made up to end a marriage, then there are obviously practical considerations to face as well as emotional ones.

One recent development is the start of government consultation about the possible introduction of no-fault divorce. The idea has been around for some time but the debate was triggered again last year when a Worcestershire woman’s appeal for divorce, after 40 years of marriage, was unanimously rejected by the Supreme Court because her husband didn’t agree.

Under current laws in England and Wales, unless people can prove their marriage has broken down due to adultery, unreasonable behaviour or desertion, they can only get a divorce without a spouse’s consent by living apart for five years.

The Government is now planning to overhaul the law but even in situations where everyone agrees, reaching a final outcome can take much longer than couples ever imagine, so the advice is to focus on the practicalities, which can be far-reaching.

According to family law experts at Barnsley-based solicitors Elmhirst Parker, thinking clearly, setting aside high-running emotions and avoiding point-scoring can make the difference if the worst happens.

They urge divorcing couples to look at the bigger picture and consider how the relationship impacts on every aspect of their lives. They also point out that getting an up to date will in place is a priority that is often overlooked.

Family Lawyer, Helen Palmer explained: “If you have an existing will that leaves everything to your spouse, it will remain valid until the decree absolute is confirmed, even if you have separated or received your decree nisi. Equally, if you do not have a will and something were to happen to you before the divorce is completed then the intestacy rules would apply. These rules govern what happens when someone dies without a will, and, again, the spouse you are divorcing would benefit.

“Updating or making a will ensures that your estate reflects the outcome that you want, which is important if you have children or have moved into a new relationship,” she added.

Recently a new partner had to make a legal challenge to secure provision for her children when their father died before the divorce to his former wife was complete. Bianca Corrado had a long-term affair with Malkiat Singh Ubbi, but his will had not provided for the children, aged three and six months, meaning the only route open to Corrado was to bring a claim on their behalf under the Inheritance Act for provision as dependents. The High Court awarded almost £400,000 to the children from the £3.5m estate and the case is likely to be used as future guidance for similar Inheritance Act claims on behalf of infant children in the future.

Helen added: “In this case the court had to make a reasoned decision but it may well be that the children’s father would have been more generous if he had made provision in his will. This was a positive outcome for the children but taking a case to the High Court is not an option for many people. Many people don’t like to deal with making a will, for all sorts of reasons, but the fallout for those left behind is worth keeping in mind.”

*This is not legal advice; it is intended to provide information of general interest about current legal issues.