Divorce and Finances

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[00:01:28] Hello and welcome to My Bump 2 Baby Expert podcast, where we bring experts from all over the UK. To answer your questions on everything. Pregnancy to preschool.

[00:01:55] Hello everybody. And welcome to My Bump 2 Baby Expert podcast. Today, I am speaking to Nadine Moaddel from Mancini Legal Solicitors in Horsham. Today we’re going to be talking about divorce and finances after divorce, too. I hope you enjoy this episode.

[00:02:21] Hello everybody. And welcome to My Bump 2 Baby Expert podcast. Today I am joined by Nadine Moaddel from Mancini Legal Solicitors in Horsham. 

[00:02:34] Hello, how are you? 

[00:02:36] Nadine: Hello. I’m very well, thank you. Thanks for having me.

[00:02:40]Carla:  I’m really excited to speak to you on this subject today. We’re going to be talking about finances on divorce. Which is a subject I think a lot of people delve into before they’re at the stages of kind of looking into divorce. Um, so I’m looking forward to speaking to about this. Um, can you just introduce yourself and what you do at Mancini Law? If that’s okay. 

[00:03:02] Nadine: Yes. So I’m  the head of family at Mancini Legal and I deal with family law. So all areas in regards to children, finances, divorce, I’m also director. So dealing with sort of HR management, et cetera, um, which is really interesting and a new role for me which I’ve been really enjoying. So yes very varied. 

[00:03:26] Carla: Brilliant. So, so with the divorce side of things, do you find, um, that you get a lot of questions before people end up going for the divorce? Is it, do you get a lot of calls around, you know, all the different circumstances around finances? 

[00:03:42] Nadine: Yeah. So lots of inquirers, I guess, um, people are sort of unsure whether they wants to go ahead with the divorce. They’re very much at the inquiry stage. Sometimes they sort of look online beforehand and they seem to have answers and whilst its good to Google things. Sometimes it can be misleading because you know, the authority is not as, um, yes, water tight as we would like. So, um, I’d also say if you’re thinking and contemplating a divorce, it’s a good idea to speak with a family lawyer. Um, yes, it’s good to speak with family and friends, but their experience is going to be very different to yours. So, yeah, that’s what I recommend. 

[00:04:20] Carla: Okay. Brilliant. Yeah. So if someone was thinking of leaving their spouse, how do they go about getting a divorce? Because a lot of people, it will be a first time thing and they’ve got children and you know, they’re at this crossroads in their life and they’re thinking, right, how do I get, how do I actually get a divorce?

[00:04:41] Nadine: So often I would, I would encourage, um, the, the individual to speak with their partner first. So it’s not going to come as a shock. So that’s often the hardest part just to see whether there’s any way to rekindle anything, try maybe counselling. Um, but if they’ve got sort of set their minds on it, they know they want to go through the process.

[00:05:01] Um, now you can do it online. So you need to find the right right ground to petition under. And at the moment, no fault divorce is going to be brought into law. Next April. So for the time being, unless you’ve been separated for more than two years, you have to use a fault based ground. So the most commonly used one is unreasonable behaviour. So if you’ve been separated from your partner for less than two years, for example, and you want to go through the process, then you’d have to use that and give the court some examples of what you find to be unreasonable. So thats how you could get the process started. 

[00:05:40] Carla: That makes sense. I imagine that can cause can cause some disagreements as well. Can’t it? Cause it can be quite hard to read that for the other person. Um, so, so with, um, a divorce, do you have to go to court or not? 

[00:05:56] Nadine: So for the divorce process itself provided it’s not contentious. And the other party agrees, you can agree on costs then no, you don’t need to go to court. It’s all paper-based, um, it’s all dealt with by the judge sitting in chambers. Um, and basically they, they recieve loads of applications on a daily basis. All they need to be satisfied with is, obviously that you’re entitled to get a divorce. Um, and if so then, um, so that the process of divorce is the petitioner applies for the divorce. Then your spouse would need to respond to that divorce to say, basically they, um, have no issue with it. They don’t intend to defend the proceedings. And then the petition would apply for the decree nisi, which is the hearing that you hear about in the media. So that’s when they refer to you can achieve a quickie divorce.

[00:06:49] So when you hear someone got divorced, that’s actually very misleading. It’s basically the court to say you’re entitled to a divorce. That’s the decree nisi hearing after which you have to wait six weeks and a day before you can apply for the final stage, which is the absolute, but the short answer is no, you don’t have to go to court.

[00:07:07] Carla: Right? Okay. So would if, if someone disagreed and you know, didn’t want to get a divorce. Is that when it gets a little bit more kind of longer, I suppose, um, the actual divorce proceedings. 

[00:07:23] Nadine: Well, yeah. So what most people tend to do is they try to ignore the petition. And they think that that’s going to achieve, um, what they will want. And it’s going to delay proceedings, but there are ways and means around it. So you need to make an extra application, which is extra fees invariably, but there are ways around that. If they specifically intend to defended divorce they need to have grounds to do so, in which case that the hearing will be listed.

[00:07:51] But I have to say in my experience, that’s never happened before. There’s more often than not. They try and pretend to be they haven’t received it or they ignore it. In which case you can, as I say, make other applications to overcome that.

[00:08:06]Carla:  Yeah. That makes sense. So, so you mentioned unreasonable behaviour, what, what other grounds are there for divorce?

[00:08:13] Nadine: So you have unreasonable behaviour, you have, uh, desertion and adultery as well. And then you have two years separation with consent versus a no fault based grounds. And then five-year separation. Without consent. Um, as I say, unreasonable behaviour seems to be the most commonly cited one. Um, just because most people haven’t been separated for two years before they decide when they want to start the process.

[00:08:42] Carla: That makes sense. So, so what does unreasonable behaviour mean? Because it’s quite a broad statement isn’t it really can it mean what, what does it mean? 

[00:08:54] Nadine: It’s very individual to you. So if you feel that behaviour of your spouse has led to the breakdown of the marriage. It’s whatever you considered to be unreasonable. So something like they’ve been working long hours, um, they don’t come home or. Um, there’s been a lack of love and affection and they don’t want to communicate, even if they snore too loudly and you cant sleep in the same bedroom. So thats led to, you know, things in that department. Its literally whats personal to you. So as long as you can show adequate reasoning, um, the court’s going to accept it.

[00:09:28] And what you need to be careful with is that you don’t, uh, draft it into non-contentious of a waste. I meaning that you need to show the court. There’s good enough reason. It’s not just going to be something ridiculous. They have to be satisfied. There has actually been behaviour, which is not reasonable.

[00:09:44] Carla: That makes sense. So, so how much does a divorce actually cost then? Because I know a lot of people think, oh goodness, like it’s going to be thousands and a lot of money. How much does it cost? 

[00:09:57] Nadine: So there’s a divorce fee, which is currently 550 pounds. Um, if you choose to do it yourself again, that’s the same fee that you’d pay. You don’t necessarily need the solicitor to help you with the divorce side. Um, but if you do decide to engage a solicitor, they’ll charge their own fees. Um, we charge a sort of a fixed fee package. So. Um, we, we often do that. So it’s about 750 pounds plus VAT at the moment, which is quite competitive. And that’s again on the basis that it’s not challenged and the other party consents to it and the divorce can sort of carry on through the normal process. Um, obviously if there’s, if there’s issues with service or they’re not responding to the petition, then the fees will be slightly higher. 

[00:10:45] Carla: Yeah, that makes sense. And what are the benefits of choosing to go with a family law solicitor rather than doing it yourself? 

[00:10:53] Nadine: So one of the main, main advantages is that you avoid delay to the process. So you know that the court is going to accept the petition. Um, and again, make sure that the grounds of behaviour. If you’re using unreasonable behaviour that is presented in a incorrect way to the court, there’s also  protocol that you need to follow. So it’s always advisable to, show your spouse, a copy of the petition before you file it, at least to give them a heads up and say, by the way, these are the reasons I’m going to put down.

[00:11:26] It’s always a good idea to try and agree them with beforehand as well. So then it’s not going to be a surprise to them, which will get their back up. Um, so it’s just sort of that sort of basic process that you would probably not appreciate. Um, and again, if there’s issues with service or, um, if the divorce is defended, then that’s something a solicitor can help with. Um, and probably one of the most important ones is making sure that their decree absolute isn’t applied for. Which obviously what we would do. Um, until the finances have been resolved. 

[00:11:58] Carla: Right. Yeah. It does, it makes sense if you go in to this blind, I think, you know, it’s, it’s going to be much better having someone there by your side, talking to you through the whole process, because it seems quite daunting experience. Um, so, so with, in terms of finances now, um, who would get the house, if you did get a divorce, how does that actually work? 

[00:12:23] Nadine: So that is one of the most common questions that I am asked funnily enough. Um, so really the, the way that, um, the courts approach it is, they rely on something called the section 25 factors and they under the matrimonial causes act. So they’ll look at, several factors such as the children of the families. So who are the children going to continue living with what the needs are of each party, what their earning potentials are, et cetera, health there’s so many factors, but you know, the short answer is it depends on what you agree with your spouse.

[00:13:03] So you can either reach an agreement amongst yourselves its often sort of called a kitchen table discussion, where you can reach an agreement. You’d then go to a solicitor and say, okay. How does this agreement weigh up? Is it fair? Is it reasonable? And in which case, then you should both provide basic financial disclosure just to make sure that, um, it’s balanced and, and proportionate.

[00:13:27] So most cases I deal with, are needs based cases. So if there is enough needs, um, if there’s enough sort of money to go around. For example for the wife to stay living at home with the children, then often that is agreed. There’s no right or wrong answer to be honest. It’s basically predicated on needs. And that’s the main thing the courts will look at. What is fair and what each party needs moving forward. 

[00:13:52] Carla: And then they reach an agreement, um, from there?

[00:13:55]Nadine:  Yes. 

[00:13:56] Carla: Right. Okay. So in terms of the house then before it gets to the divorce, obviously you’re not together. So who should be staying in the house while the divorce is going through? Because what if you’ve got two people with children and both won’t leave the house. 

[00:14:14] Nadine: Well, unfortunately there’s not a lot you can do to force someone to, to leave. Um, and more often than not, parties will continue living together whilst they go through this process, which can be very awkward, as you can imagine, especially if it’s contentious or there are financial proceedings or even children proceedings, um, so sometimes a party will move out. Um, and they’ll rent somewhere. In the interim whilst, um, matters are being resolved. Um, but I say this to my clients all the time, even if they do move out for short term or long term, they can return to the family home at any time, provided they are on the deeds of the property. Because if they own the home, there’s nothing to stop them returning.

[00:14:55] They often worry say, well, what what if the locks have changed then what, you know, I’m stopped from coming back home. But the fact is if you own that property, you’ve got every right to return. Um, there, if there’s issues to do with domestic violence, for example, um, and in the interim, you want your spouse to leave the property and they refused to do so. There are orders that you can obtain from the courts. Um, again, they’re not guaranteed. These occupation orders, can be difficult to attain, but there are ways and means around it. 

[00:15:27] Carla: Right. Okay. That’s really good to know. So, so onto the children then, um, after a divorce who actually, it sounds wrong, putting it like this, but, who gets the children in a divorce or how does that work?

[00:15:42] Nadine: So I always encourage clients to understand that children matters should always be regarded as separate to financial arrangements. I.e you don’t want to mix the two, i know that um, you know, whoever, whoever has, the children would argue if we have a greater need, but more often than not, parties reach an agreement amongst themselves.

[00:16:04] They agreed to split time. Um, however they see fit what’s in the best interest of the children and you don’t normally need to record that formally. Um, they can reach their own agreements, um, if they can’t agree. And if mediation fails, um, mediation is where they go to a neutral third party. They try and reach an agreement as to what would work with them and that the child or children, if that fails then court proceedings, um, become inevitable.

[00:16:33] And then obviously the court will make a decision on that basis. Um, but again, it’s always predicated on what is in the best interest of the child, um, rather than what the parents specifically want. 

[00:16:46] Carla: Yeah, no, that makes sense. And, and just on, on with the children as well, another, uh, um, subject, um, grandparents, do they have a right to see their children? So say for example, people got divorced. Two people got a divorce, the dad wasn’t bothered, or the mum wasn’t bothered about seeing the children. What about the grandparents on that side? Are they entitled to see those children or not? 

[00:17:10] Nadine: Well with grandparents its slightly trickier, so they don’t have a automatic right to see their grandchildren. Um, and if, if the, the other parent refused to facilitate contact, um, and again, they didn’t want to, um, be reasonable. Then a grandparent could make an application to the courts. Um, they would need to do so. They’d need to apply for the permission. Um, to basically make the application. So it’s not just a straightforward C 100 as a, as a parent would do. They’d have to file an additional form a C2, which is again, permission to apply for contact. And it is a real shame. And I think thats an area of law that does need to catch up with reality. Um, because again, grandparents, lots of the time they do act as a surrogate parents. When, when you know parents are working, they do, you know, they are valuable, um, in, in that sort of family constellation.

[00:18:08] Carla: Hm. It’s very sad, really, because yeah, like you said, a lot of these grandparents, you know, may have had these children a lot of the time when the parents are working and it’s like, you know, someone out of spite could just literally shut the door and be like, Nope, not seeing, you’re not seeing them anymore. So it is really sad because, you know, they really, i mean I don’t know about anyone else’s grandparents, but my little boys’ grandparents just love seeing him all the time and they’d be heartbroken, you know, it just is very sad.

[00:18:38] Um, but that’s good that there is something in place that they can apply for. But yeah, I understand what you mean as in catching up wise. Yeah. So, so, um, what divorce settlement will each party be entitled to? And how are finances split? I know before you mentioned it’s based on the, on the scenarios that they’ve, they’ve both got, is that, is that with everyone then? Is it all individual? 

[00:19:03] Nadine: So it’s, but it’s a very difficult question to answer succinctly. And I apologise if I sort of go around  the subject a bit, but the first factor that the court look at is what is fair, what is reasonable. And what’s balanced. The majority of cases are needs-based cases, which means that the total assets that each party has minus any liabilities. Um, it’s generally not enough to meet the needs of both parties. I mean, you’re basically going from two, two adult household with two lots of incomes to splitting that in half and trying to make that work. Um, so really that the first factor is making sure that the needs of the children are covered. They’re the first consideration. They’re not primary consideration but again, thats what the courts will, um, view, um, and, and the, the. Most important thing is that, um, there is a full disclosure of financial assets that is predication, no matter how you reach an agreement, um, if you don’t disclose your assets fully and at a later stage, it is uncovered that you didn’t do so. Then that can invalidate the whole agreement. So.

[00:20:17] Carla: Oh goodness.

[00:20:18] Nadine: That’s what people don’t realize. And if they think, okay, well, I don’t think my pension pot should be included as part of this because I am, I got it before the marriage. Again, I’ll say in the majority of cases, everything goes in the pot, pensions, um, family home sort of, uh, funds from that, lead bank accounts, et cetera. So more often than not, you’d need to include everything within that financial settlement, unless there is an agreement as to the contrary. 

[00:20:47] Carla: Right. That makes sense. So, so with, um, people that, sorry, I’m going to throw you off subject a little bit here now. Um, but with people that aren’t married, um, how, how does it work? Is that a totally different ball game to what we’ve discussed? Um, 

[00:21:04] Nadine: Mmm exactly

[00:21:06] Carla: Yeah, right. 

[00:21:07] Nadine: That’s another area that, um, the resolution is, I’m a member of, so sort of society where by we’re solicitors and we try and deal with them cases in the most, um, non-contentious way, but they’ve been petitioning for years now for rights for cohabitees because there is this presumption of common law marriage. So if you’ve got a child with someone, if you’ve been with someone for a certain amount of time, you’ll then get rights. Um, and to finances when you separate, which is just not the case, you’re so vulnerable as a cohabitee.  Even if you’ve got children together, even if you own a property together, um, even if you share your finances. And you’ve been together for a number of years. So it’s important for people to realize that and, um, to sort of sort their finances out accordingly 

[00:21:56] Carla: Right. That makes sense. No I think you’ve, you’ve answered everything there. It was really interesting because I think a lot of people, it might be the first time they’re actually going through this and it’s quite a daunting subject really.

[00:22:10] Nadine: Yes, it can be and it is being a family lawyer. I do joke sometimes I feel like a counsellor at times and a lawyer and all those other things and all these other roles, because it’s, it’s difficult to separate the emotions sometimes from the practical side. And what I tell clients all the time is you need to sometimes, you know, take each day as it comes.

[00:22:31] It can be very overwhelming. Sometimes the process feels like it’s going on forever. It can last for longer than a year if you can’t agree with finances. So unless you take that stepped approach, you basically won’t be able to cope with it. So it’s just recognising that. And that’s why it’s important to have a solicitor by your side, who understands that. Who can explain the process and break it down, make it more manageable. 

[00:22:56] Carla: Can I just ask one more question? That’s popped into my head actually, if, if you divorce say does take a year, what happens if either party while that’s going through has moved on and they’re in a new relationship, does that affect the divorce?

[00:23:11] Nadine: Oh, sadly, well I say sadly. It’s not sad. You know, people are entitled to start new relationships, but you know, parties often do enter into new relationships. Sometimes they could even get a divorce and then get remarried during that process before they’ve even dealt with the finances.

[00:23:26] Carla: Oh my goodness.

[00:23:28] Nadine: For the first marriage. So that can often complicate things. Um, especially if there is a remarriage, where there is cohabitation. Um, there is a section on form E which is the the disclosure form, um, where you need to disclose all your finances, but then there’s a requirement to provide your new partners information on there. But in all honesty, in the majority of cases, a party won’t disclose the information because they say, well, this is a new relationship. We’re not engaged we’re not married, so therefore I’m not compelled to, to give that information. Um, so yeah, it. It can be contentious. So it’s not one of those things that you would actively pursue unless they remarried. And then you have to consider their new spouses, um, finances and their information. 

[00:24:18] Carla: And of course those, um, after that, just briefly, uh, obviously when you’re thinking about divorce, you also need to then think about your will as well, because a lot of people have life insurance policies and, you know, your will, you know, once you’ve done that, it, you know, you, you married, but then if you will still stands and you’re not married, is that, do you, do you talk to people about getting a new will straight after? 

[00:24:43] Nadine: Yeah, straight after the divorce because divorce does affect, um, your, your will. Um, again, because you’d want to, you’d want to change your will as soon as you get a divorce because you, um, you may have referred to, you know, most, most people wants to do a mirror will. So they leave everything to their spouse. And obviously when you get to divorce, I’m sure, you wouldn’t want to have that same provision in place. Um, so I encourage my clients do that as soon as they, as soon as they get divorced. Um, so that’s very important. Um, and another thing that people don’t really think about as well. If you own a property jointly with your spouse, more, more people than not own it as joint tenants, which means that you own it 50, 50 and equal shares. But if one of you were to predecease the other whilst, the proceedings were going ahead, um, then basically their 50% share would automatically vest in the other person.

[00:25:41] Which again is probably not what you would want to happen, so to protect your 50% share, um, you’d want to sever that tendency. So you’re tenants in common rather than joint tenants. So you can at least seek to preserve some of that. Um, You know, pot of the family home, but again, to what extend that I’ll be protected, will depend on, on the needs as well. Um, and that’s another, that’s a whole other issue during divorce proceedings, that you  probably wouldn’t even think about. 

[00:26:12] Carla: No, I wouldn’t even think about that. And that’s, again, the benefits of having a family law solicitor, above just going online and thinking, right, I’ll buy this because all of this information, you know, you wouldn’t get told and then, you know, God forbid you did pass away, you know, your partners going to be getting well, ex partner’s going to be getting a lot really aren’t they? And, and I imagine, like you said, that isn’t something that you’d want at that time. So 

[00:26:38] Nadine: And sometimes I do. I do have  um, clients where the other party, for example, has a terminal illness and they say, you know, it’s even worth going through this process. And sometimes they may say, well, actually given, they have only got X number of months, and its horrible, it’s horrible if you talk about it, but it’s, you have to think about, okay, you’re going through this process, perhaps sort out you will arrangements try and reach an agreement with them first. Um, rather than going through the divorce process, because who knows if they’ll even survive past that point. Um, so those are all practical things that, as you say, Google, can’t tell you, um, and sometimes the reliability of those sources isn’t right. You don’t know who’s writing them.

[00:27:21]Carla:  And they’re not up to date some of them, the laws changed don’t they? And, you know, It’s uh, making sure they’re up to date as well. And when you actually speak to someone, you’ve got that contact there and you know, you’re in good hands, then, you know, you’re going to get everything discussed and everything covered and they’re going to be aware of everything.

[00:27:38] So that’s, that’s great. No, that’s really interesting that I’ve enjoyed recording that with you today. So thank you so much.

[00:27:46] Nadine: Thats ok.

[00:27:46]Carla:  Um, could you, could you just tell people again where they can find you if they want more information on this subject, if that’s okay. 

[00:27:55] Nadine: Yes. So, uh, we have offices in Horsham, Haywards Heath and Crawley I’m based in Horsham. Uh, so if you’d like to find out more them please, go on our website its, Mancinilegal.com. Um, and as part of the department, I offer free 30 minute consultations for all new clients. Um, so yeah, please get in touch. If you do need some advice. 

[00:28:20] Carla: That’s brilliant. It’s nice for people to be able to know who they’re talking to as well. So it’s been great having you on here and thanks so much for being so helpful. Um, I’m sure that will answer a lot of questions. I get these things in my head where I just have to ask them and I think we’ve covered a lot there. So thank you. 

[00:28:36] Nadine: Oh good.

[00:28:37] Carla: Thank you so much. 

[00:28:40] Thank you for listening to My Bump 2 Baby’s Expert podcast.

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