If you have decided to end your marriage, either independently or in joint agreement with your spouse, there are a number of steps you need to take immediately to protect your best interests.
Although it is important to keep relations as amicable as possible, especially if you and your spouse have children together, it is imperative that you act quickly in the initial stages of the separation, to ensure you receive a fair financial settlement.
Step One – Get a lawyer
If you plan to initiate a divorce, you should speak to a lawyer before you talk to your spouse. Although this may sound mercenary, if your mind is made up to end the relationship, by seeking legal advice as soon as possible you will be able to organise your affairs quickly to secure your best interests. A family solicitor can also give you a clear idea of the options you have with regards to making arrangements for your children.
Make sure you are prepared when you meet with your solicitor. Take documents such as bank statements, copies of insurance, mortgage and pension plan documents with you to the meeting.
If you are in an abusive marriage, then seeking legal advice before you tell your spouse you are leaving is essential for your own safety. A family solicitor will inform you about Non Molestation and Occupation Orders, and if necessary put them in place before you tell your spouse you are ending the relationship. They can also advise you on various refuge shelters, where you can stay anonymously if you feel that walking out on your abusive marriage will put your safety in immediate danger.
Step Two – Take Action
Once you and your spouse have decided to call it quits, you need to take practical action to ensure that any future financial settlement reflects the assets and liabilities between you and your spouse at the time of separation.
Obtain an injunction
If you suspect your spouse may try to move or hide assets during the divorce process, then you may need to obtain an injunction to prevent this from happening. This can be a costly process and your Solicitor will discuss whether this step is proportionate in your case before proceeding with an application.
Freeze bank accounts
Make sure you speak to your bank, credit card provider and any other institution where you and your spouse have joint financial arrangements (for example stores which provide credit). Parties to a joint bank account or credit card are both jointly and severally liable for outstanding debts. This means that if your spouse cannot pay for some reason, the bank can come after you for the full amount.
On request, banks can freeze accounts if there is a dispute between the parties. If this is not done, then normal terms and conditions apply, and one party to the account can withdraw funds as normal.
Cancel your joint overdraft
As above, because of the nature of joint and several liability, if your spouse runs the joint account up to its overdraft limit or beyond, the bank are within their rights to chase either of you separately or both of you together to repay the outstanding amount. Ask the bank to cancel the overdraft.
Sever joint tenancy
Your property is likely to be the greatest asset within the matrimonial pot. If you own a property with your spouse and you are joint tenants (as a majority of spouses are), then should you die during divorce proceedings (which can go on for months, if not years), then your estranged spouse will automatically receive your share of the property, regardless of instructions left in your will.
To protect your share of the property, you need to sever the joint tenancy and change it to a tenancy in common. Your solicitor will ask you to sign two copies of the Notice of Severance, and both would then be sent to your spouse (or their solicitors). A request would be made for one of the forms to be signed and returned so that this version (bearing both spouses’ consent) can be registered at District Land Registry and the record of the property ownership will be amended.
Changing nomination for a death in service benefit, company pension scheme and any life insurance policies
If you have a company death-in-service or pension scheme and/or separate life insurance policies and your spouse is the nominated beneficiary, then you will need to change the nomination.
Divorce does not invalidate nominated beneficiaries. To change the nomination, you will need to speak with your company’s HR department and/or your insurance broker and update your policy forms.
Step Three – Update or Make Your Will
Separation does not affect who will benefit under a will. If your will names your estranged spouse as a beneficiary and/or executor and you die before the decree absolute is granted, they will inherit in the same way as if your marriage was still intact. It makes no difference in probate law whether you have been separated for ten days or ten years.
If you die without a will (known as dying intestate), then the rules of intestacy will apply. This means that if you leave surviving children, grandchildren or great-grandchildren your spouse will inherit all your personal property and belongings, the next £250,000.00 of the assets you have left and then half of the balance. For many people this would mean that their spouse would inherit everything they own.
If you die without a will and there are no surviving children, grandchildren or great-grandchildren your spouse will inherit all your personal property and belongings and the rest of your estate with interest from the date of death.
If you have received the decree absolute, which is the document which formally ends your marriage and you do not change your will, things can become very messy if you die.
Although your ex-spouse will no longer be a beneficiary or an executor under your will, if you have not updated it and removed his or her name as an executor or beneficiary, then there will be no one to inherit the property given to your ex-spouse under the will. Therefore, the rules of intestacy will apply to the said properties disbursement.
As soon as you have separated you need to make or update your will and it is wise to do this again following the decree absolute being granted.
Separation and divorce can be made easier if you prepare in advance and protect your best interests by obtaining experienced legal advice and take action to secure your financial future.
Sultan Lloyd Solicitors have the experience and expertise required to successfully advise clients on all separation and divorce matters. To find out how we can help you, please contact our Birmingham office on 0121 222 7643 to make an appointment with one of our family law team.