Part of the problem is the divorce process itself, which could have been specifically designed to create as much hostility as humanly possible.
The Government has promised to change the way that divorces work, which would ease some of the antagonism created by the process, but it announced recently that we’re going to have to wait even longer for this change to come.
Right now, you can divorce on the grounds of adultery by your spouse, unreasonable behaviour, desertion for two years, separation for two years (if the agreement to divorce is mutual) or five years (if one of you wants to stay married).
52 per cent of wives who start divorce proceedings do so on the grounds of unreasonable behaviour, and 37 per cent of husbands do. It means couples need to air every major grievance and disagreement in their relationship to prove their ex is ‘unreasonable’, which is only ever going to make things less cordial between them.
When one couple I know divorced, she brought up the issue of him refusing to do his share of childcare. He then decided that from that moment onwards, he would only ever care for his children on weekends and bank holidays, because he refused to be seen as a convenient childcare option.
This anger and bitterness can spill over into a desire to get revenge through the financial settlement too, which draws out the process and makes it more expensive for everyone concerned. We’ve all heard someone claim they’re going to take their ex for every penny they can, after feeling wronged during a divorce.
If couples don’t want to get into a legal slanging match, they have to wait until they’ve been separated for at least two years, and divorce on those grounds instead. This creates enormous logistical issues. If the couple go their separate ways, they suddenly have to find a way to cover the cost of two households out of an income that previously only covered one.
To make matters worse, if you buy another property before the divorce, it will be treated as a second home – with additional stamp duty. If you then get divorced and no longer own any of the family home within 36 months of the purchase, the extra stamp duty is refunded, but there are no guarantees you’ll get everything through in time if you end up waiting two years for a divorce and then struggling to sell.
On top of that, if the divorce takes place in a different tax year to the split, you may end up with a tax bill. Assets you pass to your spouse when you’re married aren’t subject to capital gains tax, but if they are passed in a new tax year, there may be tax to pay. Some couples can come to a separate agreement to exchange assets before the divorce is finalised, but this requires you to actually agree – which isn’t always possible.
If the animosity between a couple gets to fever pitch, then the longer the process goes on, the more opportunity they have to destroy one another’s finances. There have been plenty of couples where one has spent their joint assets before the divorce. In theory, you can apply to have this taken into account when a court is deciding how to divide your property, but in reality it’s very difficult to prove this was done out of spite.
Even more commonly, couples with shared debts such as a mortgage or loans can end up in financial difficulty if one of them misses payments. Both their credit records will be affected.
If your spouse doesn’t want to split up, it’s even more complicated, as they can contest the divorce, which means you’re likely to have to wait for five years. This is unusual, but it does happen.
In 2017, an appeal court ruled a 66-year-old woman had to stay trapped in a loveless marriage to her 78-year-old husband until five years after the split, because his behaviour wasn’t deemed unreasonable enough, and he wanted to stay married. The case went to the Supreme Court in 2018, where the court ruled that a ‘joyless marriage is not grounds for divorce’.
This result intensified calls for the introduction of no-fault divorce, and later that year, the Government consulted on it. In April 2019 it concluded that reform was necessary, but we’re not going to see the new rules come into force until April 2022.
A major part of the delay was because the Government was preoccupied by Brexit, so didn’t have parliamentary time to pass a law until 2020. At that point, it promised the new rules would be in place this autumn, but it has delayed the change because the legal systems and the IT aren’t going to be ready in time.
The new rules mean that from the start of the next tax year, instead of having to prove your ex is a terrible human, you just have to apply and wait for at least six months for the process to take place. Your ex can’t contest it, and there’s no need to wait for years for a resolution.
Anyone going through this hell needs the love, patience and support of those around them, and for everyone else to leave them alone.
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