Second Marriage Divorce
If your second marriage is in trouble you may already know a bit about divorce and financial settlements because of your experience from the first time around.
This time you may find that some things are different. Firstly, divorce law has changed. Secondly, your first husband or wife may have been very reasonable and this enabled you to reach a financial agreement. The situation may not be as straightforward with your second marriage divorce.
In this blog, our divorce solicitors look at what you need to be aware of when ending a second marriage.
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
No-fault divorce proceedings
Divorce law in England has changed with the introduction of no-fault divorce and new divorce terminology. Family law solicitors no longer talk about divorce petitions or decree nisi or decree absolute. The new terminology is divorce application, conditional order of divorce and final order of divorce.
Whilst you still need to have been married for at least 12 months before you can start divorce proceedings the remaining rules on divorce applications have been changed. You no longer have to say that your husband or wife committed adultery or behaved unreasonably to start divorce proceedings or wait 2 years from the date of your separation to start your divorce petition. Now, all you need to say in your divorce application is that your marriage has irretrievably broken down. You do not need to go into the reasons why.
Applying for a joint no-fault divorce
Another major change to the divorce process is that you can now apply for a divorce jointly with your husband or wife. You or they still have the option to bring an individual or sole application if one of you prefers to do so.
Our divorce solicitors will normally recommend that you start the divorce proceedings either jointly or in your name if you want to get the divorce sorted out in your timeframe. You may be concerned that your estranged husband or wife may delay starting divorce proceedings if they are the ones given the task of starting the divorce application. Getting quick divorce advice is important if you are concerned about your estranged spouse selling the family business, cashing in investments or hiding assets. If you or your spouse are from overseas then you may need urgent advice on court jurisdiction and where it is best to start the divorce proceedings.
Whether you decide that a joint or single divorce application is the best option for you the actual divorce process is similar. A divorce application must be filed at a family court and a fee paid.
At Evolve Family Law we offer fixed fee divorce services for most divorce applications.
The no-fault divorce process
The no-fault divorce process involves:
Divorce application - either a joint application or an individual application by one of you
A wait – court rules say the applicant for the divorce must wait 20 weeks before they can confirm they want a divorce and go ahead with the no-fault divorce process
Conditional order - the court makes a conditional order. This is the same as the old decree nisi of divorce
Another wait - after waiting another 6 weeks, the applicant can apply for their final order of divorce (this is the new name for the decree absolute of divorce)No-fault divorces take about 6 months to complete from applying for the divorce to getting your final order but the no-fault divorce advantages are that you do not need to go to court to get your divorce order and you do not need to blame your spouse (or vice versa) to get your divorce.
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Second marriages and financial settlements
In second marriages there is a good chance that you signed a prenuptial agreement before your second marriage. Your divorce lawyer will want to know if you signed one and the terms of the agreement. They will also want to know if anything has changed since you signed the prenuptial agreement or a postnuptial agreement. For example, the birth or adoption of children, the failure of a business or either you or your spouse suffering ill health or a disability. These are the sort of things that might lead to a family court saying that the terms of a prenuptial agreement should not be followed or not followed in their entirety.
If you signed a prenuptial agreement, it should be possible to secure an agreed financial court order unless there are major changes in circumstances or you or your ex are saying that the terms of the agreement were unfair or there was no financial disclosure.
If you did not sign a prenuptial agreement, it may still be relatively straightforward to negotiate a financial settlement by agreement if you are both keen to finalise your divorce and secure a clean break financial court order. Complexities can arise in situations where:
You are paying spousal maintenance to your first spouse and your second spouse also wants spousal maintenance – you think there is a limit to how much you can afford to pay out in spousal maintenance
Your ex-spouse wants a share of your pension but the pension pot was accumulated before your second marriage and your pension was your financial settlement from your first marriage as your first spouse got to keep your family home
Your second spouse wants you to financially support your step children but you are still financially supporting your children from your first marriage
Your ex-spouse wants to keep the family home as they bought it before the marriage. If they keep the family home and do not down size, they will not be able to pay you a lump sum as they do not have significant savings and they only have a limited mortgage capacity because of their age. You do not want to be left homeless as your mortgage options are also limited because of your age or because you are committed to supporting your children from your first marriage through their teenage years and through university
There may be other reasons why it is hard to negotiate a financial settlement when coming out of a second marriage. Our expert divorce solicitors will be able to help you by talking to you about the circumstances of your second marriage, your assets and commitments, and then looking at the alternate financial settlement options.
Filing for divorce using the Evolve Family Law One Lawyer Divorce Service
If your separation from your second spouse is relatively amicable our One Lawyer Amicable Divorce Service may be able to help you both file for divorce and obtain an agreed financial consent order.
This service is provided by specially trained family lawyers who comply with the guidance from Resolution (an organisation for family justice professionals who work with families and individuals to resolve divorce and family issues in a non-confrontational manner). The service is not the right option for every couple coming out of a second marriage but it can be ideal if you both ‘know the score’ and are both keen to reach a fair financial settlement with the minimum of fuss and no added costs being built up by your each receiving separate and different advice,
For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.
Robin Charrot
May 08, 2024
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7 minute read
Do You Need a Will if You Are Married?
Will solicitor, Chris Strogen, is emphatic that you do need a Will if you are married.
In this blog, we explain why you need a Will if you are married and how our Will solicitors at Evolve Family Law can write your Will or advice on whether an existing Will needs changing.
For expert Will and estate planning advice call our team or complete our online enquiry form.
Why do you need a Will if you are married?
Whether you are married or not, if you die without a Will then your assets (called your estate) pass under statutory intestacy rules. Who gets your money and estate depends on whether you are married or in a civil partnership and whether you have children or other extended family.
The intestacy rules are inflexible and they may not reflect your wishes or be tax-efficient. Without a Will, it can be more difficult to administer your estate, especially if you own complicated assets. For example, you are a shareholder in a family business or you are self-employed as a sole trader or own a buy to let property portfolio.
In addition, if the intestacy rules do not meet your family circumstances a qualifying relative may want to challenge the estate distribution and make a claim against the estate. They can do this by alleging that the intestacy rules do not make reasonable financial provision for them.
The intestacy rules if you die without a Will and you are married
The intestacy rules if you die without a Will and you are married depend on whether you have children.
Step-children do not count as your children for this purpose as they are not biologically related to you. That’s the case even if you have always been very close to your step children. Your children from any previous relationships do count even if they are estranged from you or if at the date you pass away, they are financially independent with their own homes and families. Children includes adopted children and the descendants of your biological or adopted children.
If you do not have children your husband, wife or civil partner will inherit your entire estate.
If you do have children your husband, wife or civil partner will inherit:
The first £322,000 of your estate
All your personal possessions
Half the rest of the estate. The remaining half is divided equally between your children
The intestacy rules say that if a child has died before their parent, then the grandchild or the great grandchild of the deceased inherits in their parent’s place.
As the intestacy rules are inflexible an estate claim could be brought. For example, your husband or wife may say that they need more than £322,000 and half the rest of the estate to meet their needs. Alternatively, if you jointly own a family home with your spouse as joint tenants, your surviving husband or wife will end up owning the family home as well as getting the first £322,000 of your estate and half the remainder of the estate. Depending on the size of your estate, that may not leave much for your children to inherit.
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Why writing a Will is a good idea whether you are married or not
Having a Will in place is always a good idea, whatever your personal circumstances.
With a Will you can:
Decide who should administer your estate and distribute the monies. The named people are called your executors. They can be family members, friends, a Will solicitor or a combination. You need at least 2 people to act as your executors
Appoint a testamentary guardian for your children. This is important if you have children under the age of 18
Make gifts of specific assets to people, such as items of jewellery or sentimental family heirlooms
Ensure that your estate is distributed tax efficiently so the estate pays less in inheritance tax. This should mean there is more money left for your beneficiaries
Leave money to a charity of your choice
Say what your preferences are about funeral arrangements
Place money in a trust. This can be helpful where, for example, you have been married previously and have children from different relationships. You may want your current spouse to be able to stay at the family home and have enough to live very comfortably but you may want your estate left in trust so that on your spouse’s death your remaining estate passes to your other trust beneficiaries, such as your children. If money is left outright to your spouse in your Will or under intestacy rules, then on the death of your spouse your monies will form part of their estate and be distributed in accordance with their Will or under intestacy rules. If your spouse remarries then the monies inherited from you may pass to their new husband or wife rather than to your children or grandchildren or to your preferred charity
There are many other reasons why talking to a Will solicitor is a good idea. For example:
To understand what assets form part of your estate. If the family home is owned as joint tenants, it passes straight to the surviving owner and not by your Will. If the house is owned as tenants in common your share of the property passes by your Will or under the intestacy rules. Other assets, such as a pension or life insurance, may not pass by your Will but by nominations. It all depends on how the policy is written
It may be tax efficient to make lifetime gifts as part of your estate planning and IHT strategy
You may want to put in place a Lasting Power of Attorney for yourself and your spouse
You may want to check if your former spouse has a potential claim against your estate and discuss what you can do to protect your current husband or wife or your children from such an estate claim
For expert Will and estate planning advice call our team or complete our online enquiry form.
Chris Strogen
Jan 10, 2024
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6 minute read
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