How divorce law works

TV and magazines often give a false picture of the way that the law feels when you’re involved with it. Many people assume that the law will do some things that it can't or doesn't. Here are some points to remember:-

You’re not likely to go to court

Very few cases do end up with a court hearing. So if, when you started thinking about divorce, you saw yourself in a witness box, bravely dealing with the questions of the lawyers, forget it. It isn't going to be like that.

Nearly every divorce case is undefended. There are often arguments before it starts about who is going to start it and why, but once the papers are filed most cases don't get defended. This is for the very good reason that it costs a fortune and isn't worth it.

It's a 'paper process'

Nearly every stage of the divorce takes place on paper. This means that the documents end up being very formal, written in legal language. But it’s still your divorce. If you don’t like what your solicitor has written, say so. If you don’t understand it, don’t be afraid to ask.

It’s expensive

One thing the media don’t get wrong is the cost of solicitors. Assuming you have a solicitor, it will be expensive. Even if you get legal aid (see ' Costs and Legal Aid' in Getting some help) you will have to pay it back if you get money at the end of your divorce. You need to budget for this. Some solicitors take credit card payments, others will let you pay regularly by standing order. You should always be given regular bills and kept informed about the level of the costs.

If you use a mediator (see Getting some help) this can help you keep the costs down. Most mediators will charge you session by session, making it easier to keep track of where you are financially.You can get legal aid for mediation too, and it’s free: there is no need to pay it back at the end of the case.

The law is neutral

Family law gives men and women equal rights. If you believe some of the things that you read, you might think that family law favoured women over men, or vice versa. But the law as it is written is not biased. For example, either member of the couple can be ordered to pay maintenance to their partner if their partner has been dependent on them for money. In practice, more men are likely to pay maintenance than women, but this is because men typically earn more than women. In a case where a father has stayed at home to look after the children and the wife is the breadwinner, she might well be ordered to pay him maintenance.

The same neutrality applies to the law about children. The laws about what happens to children after divorce have no bias for one parent or the other. The court has to treat the welfare of each child as the most important factor. In practice more children are likely to live with their mothers after divorce than their fathers, because in many families the father has been the major earner, and the mother has spent more time with the children. But this is not something that is laid down in the law.

There are no rewards or punishments

'Past conduct' is listed as one of the criteria for deciding how the money is divided. But it only counts if it has been really, really bad. Generally speaking, you can't use the financial settlement to punish your partner for their past bad behaviour or to get reward for what you see as your good conduct. It doesn't work like that. When it comes to working out the money, the court is concerned with the future. Instead of looking back and trying to compensate you both, the court looks at what you both need for your future lives. And this does mean both of you. The money somehow has to stretch to cover both your needs. Unless you have pots of money, this means that you are both probably going to go short for the next few years.

Wobbly and uncertain

The law can seem wobbly and uncertain when you first meet it because the system is very flexible and each family has different needs. Except for children’s maintenance, there are no set formulas for working out who gets what. Instead, lawyers have a number of ‘rules of thumb’ based on past cases and their experience.

The timing of divorce proceedings and what happens about the money is, to a large extent, something for you and your partner to decide. You may be able to decide things together, which may feel more comfortable. Or you may be fighting over a number of things, in which case it may be hard to predict what will happen.

If you understand from the outset that you are going to have quite a long period of uncertainty, when your future may seem to change from day to day and week to week, this may help you cope with it better. It will settle down in the end, but it may be a bumpy ride for the next few months. Hang in there. Don't expect too many answers too soon. Try to focus on the longer term and work towards that.

November 2009