Matrimonial discord is something most couples do not understand or think about until they find themselves in an unhappy or abusive relationship. Even then one partner would normally be in an advantageous position due to financial superiority or control and therefore the other spouse often continues to put up with unreasonable demands and unfair treatment of them for example in the running of the household, financial matters and the upbringing and education of the children and the making of important decisions such as purchase of a family home, savings for future, holidays and social relationships with friends and family of the couple.
When cracks start to appear in the relationship and discussions and mediation have failed eventually making a decision about ending the relationship and moving on becomes necessary. This is a big and important decision and needs to be very carefully made since it may not only affect the future of the couple individually but also the welfare of the children and their best interests which cannot be taken lightly, let alone ignored.
The legal framework for judicial separation, divorce, children, financial provisions (maintenance) and property distribution is set out in the Matrimonial Causes Act 1973 (the Principal Act). Prior to reaching the breakup point, couples should be encouraged by their lawyer, to attempt to reconcile with outside help for example through counselling and mediation but failing that, proceedings need to be commenced for divorce followed by further applications to a Family court for sorting out the issues of contact/residential order for the children of the family, maintenance and distribution of property between the couple with the assistance of their lawyer and the court. This process could take up to a year or much longer depending on the willingness of the parties to settle matter on an amicable basis by not making litigation protracted or acrimonious.
A long legal battle could result in legal costs being high and sometimes unaffordable. It could also mean in many cases a less favourable settlement financially for one or both the contesting parties. Moreover, it should be remembered that legal fees have to be paid out first, before distribution to the respective parties of their shares in the matrimonial assets. This a very important consideration litigating couples should take into account where they own property and/or have children, before commencing and during court proceedings since there may be several court attendances by lawyers until settlement is reached. If the parties cannot agree then the court makes a final order and the hearing could last days meaning additional legal costs.
The approach of the judges normally is to encourage agreement on a fair and equitable basis. This is indeed the guiding principle, which a family judge would keep in mind if the parties fail to reach an agreement and the court is required to adjudicate.
The author is:
Shahid Dastgir Khan
Senior Partner and Solicitor