Tracey Miller, Family Law Partner at Excello, has more than 36 years of experience advising high net worth clients going through a divorce. In this article, she outlines seven of the most common mistakes that people make, and how to avoid them.
Not seeking professional advice
Recent changes to divorce law have made it easier to apply for one by yourself, but you should always get proper legal advice as your first step. Even if your separation is an amicable one and you think you know how you and your partner plan to divide your assets, a specialist family lawyer will be able to explain how the process works and what steps need to be taken, and when.
Take time to find the right lawyer for you. They should have experience handling high value separations for high net worth clients, and be proficient in managing international assets and proceedings if relevant to your situation.
Being unprepared
The divorce process requires both parties to account for all of their assets, and that means producing extensive paperwork. Getting your documents in order as soon as possible will put you in the driver’s seat for the rest of proceedings.
Start with your locating your marriage certificate – without it, you won’t be able to file for divorce. Getting a copy from the relevant authority is doable if you have misplaced it, but this will take time. Your lawyer will then be able to advise you on what else you need, and you should make sure they see everything you might be required to disclose straight away.
Not understanding ‘matrimonial assets’
Many people believe that a divorcing couple’s assets will be split 50:50. While an equal split may be taken as the starting point, the court will differentiate between ‘matrimonial’ assets – those accumulated during the course of the marriage – and ‘non-matrimonial’ assets. Whether or not an asset is ‘matrimonial’ will determine whether it falls into the ‘sharing’ pot.
Judges, mediators and arbitrators will take a variety of factors into account when dividing assets, primarily a concept of ‘fairness’ and ensuring neither party is too heavily disadvantaged. A divorce settlement will then depend on various factors including both parties’ earning capacities, the ‘contributions’ made by both (including to family life) and the conduct of the parties during proceedings.
Assuming prenups aren’t legally valid in the UK
While prenuptial agreements aren’t automatically legally binding in the UK, and have less standing than in some other jurisdictions (notably the USA), it is wrong to say they aren’t worth the paper they’re written on.
If the court rules that the prenup provides for fair distribution of assets and won’t lead to one party being too heavily disadvantaged, and if all involved understood what they were signing up for having received independent legal advice, the prenup may well be upheld.
Jumping straight into court proceedings
Many people assume divorce inevitably involves court hearings and high legal costs. In reality, most separations in the UK are resolved without needing to go to court.
Where the separation is relatively amicable and major issues aren’t disputed, solicitors can usually manage matters privately. Even where disagreements arise, alternative dispute resolution (ADR) such as mediation or arbitration can often help resolve them without formal proceedings.
ADR is particularly useful when couples cannot agree on arrangements for children, property or finances. This approach can often be quicker, less expensive and emotionally easier for all involved that court action. As a result, court should be seen as a last resort rather than a default.
Refusing to compromise
An unwillingness to compromise can significantly delay divorce proceedings, and it’s often this which leads to expensive court litigation. It’s important early on to identify your key priorities and discuss your non‑negotiables with your solicitor.
Maintaining communication is crucial. If direct discussions are difficult or risk becoming heated, communicating through solicitors can help reduce conflict.
Forgetting about pensions
Pensions are frequently overlooked during divorce, despite often being one of the most valuable assets accumulated within a relationship. Many people wrongly assume they aren’t entitled to a share or that pensions won’t have a meaningful impact on their future finances. In particular where one party has taken time out of work for family responsibilities, ignoring pensions can result in substantial long‑term losses..
Pensions can be addressed through pension sharing, offsetting or attachment orders. The right approach depends on various factors such as the length of the marriage, contributions made by each party and any dependent children. Given the complexity involved, specialist legal and financial advice is essential to ensure a fair outcome.
