insideKENT Magazine Issue 95 - February 2020 | Page 154
LAW
Preparing for Divorce CONT.
Marriage Preparation
Marriage Foundation, founded by Sir Paul Coleridge
(formerly a high court judge), is partnered with
organisations, some faith, others not, who can deliver
marriage preparation guidance.
Some of the benefits that are offered promise to help
a couple:
• Build strong foundations by taking time to examine
the expectations of the couple. This can include
identifying how responsibilities will be handled and
setting a family budget that can adapt to change.
• Highlight the art of communication where
listening is twice as important as speaking. It is said
we have two ears and one mouth for a reason.
Communicating with each other with respect and
kindness can get lost when times are challenging.
Most of these components are relevant on divorce
so by planning ahead you potentially avoid some of
the pitfalls when a relationship is broken and goodwill
can be in shorter supply.
Although a Prenuptial Agreement is not legally
binding, a Court is likely to uphold an Agreement
if it has been entered into with sufficient financial
information being shared, legal advice and
appropriate consideration. Where children are
involved it may not be so easy to apply a Prenuptial
Agreement but that does not negate the benefits an
agreement can provide. Anyone entering a marriage
with resources that they wish to preserve for
themselves as a pre-marital resource would do well
to take advice. Equally those entering into marriage
for a second time may benefit from a Prenuptial
Agreement to preserve some resources for children
of their earlier marriage.
• Create strategies to repair damage done when
communication can turn sour. Knowing how you
are going to resolve any problems that cause conflict
and learn how to apologise and forgive when things
go wrong. A Prenuptial Agreement cannot exclude the power
of the Court to make a determination favourable
to an economically vulnerable party at the end of
the marriage if appropriate to meet that party’s
needs, but the Courts are increasingly willing to
allow a couple autonomy to make decisions intended
to bind them.
• Remember to love and support each other through
the ups and downs of life whatever happens,
even divorce. Do You Want A “Good” Divorce?
Prenuptial Agreements
Over the past decade, it has become increasingly
recognised that entering into a Prenuptial Agreement
can be sensible preparation for a marriage. The
intention is to formulate a binding outcome in the
event of separation and divorce to avoid a “bad” or
stressful divorce.
Key to a Prenuptial Agreement are:
• Sharing financial information
• Obtaining legal advice
• Making a will
• Allow enough time to avoid any impact on the
wedding day preparations.
If so, try to agree what will suit you and your
separating spouse best. If you think you can reach
shared decisions, explore mediation or instruct a
collaborative family law specialist. These processes
have been developed to improve divorce outcomes.
For some, Court might seem the only option. Courts
exist to help people where sharing decisions is not
possible and/or one party needs an imbalance
redressed. The Court will impose an outcome having
heard competing arguments. This might seem good
for one and less so for the other, but it could go
either way. The aim of the court is to balance the
resources of a marriage to meet the needs of each
party applying the relevant headings below having
regard to what is fair and reasonable in all the
circumstances:
• The welfare of a child of the family
• The income, earning capacity, property, and
resources of each party
154
• Each party’s needs so as to meet obligations and
responsibilities
• The standard of living that existed prior to the
breakdown of the marriage
• Duration of the marriage and the parties ages
• Any disabilities
• Contributions that each person has made to the
welfare of the family
• Conduct, if too serious to ignore
• Serious disadvantage created for a party on the
ending of the marriage
A Court can order that property owned by one
person be transferred to another or from joint names
to one. It can order a party with more pension
provision than the other to share some of their
pension with the other. The Court can also order
lump sum payments to be made between spouses
and payments of maintenance for either the children
and/or a spouse. Whilst primary jurisdiction for
child maintenance is with the Child Maintenance
Service, not the Court, there are occasions it will
order child maintenance including by agreement.
Dawn Harrison is a Director and Family Law Specialist
at Whitehead Monckton. For more information on preparing
for divorce contact Dawn via email
[email protected]
or call 01622 698051.
www.whitehead-monckton.co.uk
WMonckton
WhiteheadMoncktonLimited