I have been married for eight years but over the past 18 months I feel like my husband has more of a relationship with his phone. He ignores me and prefers to sit alone with his mobile rather than do something as a couple. It is such a huge area of contention for us that I am considering divorce. Is “he spends too much time on his phone” a valid reason for filing for divorce? I’ve also been the main breadwinner. We have no children. If we divorce, will I have to give him half of my assets?
Joanna Pratt, partner at Thomson Snell & Passmore, says it was announced last week that the UK government will introduce legislation to overhaul the divorce system for the first time in more than 40 years and allow couples to apply for a no-fault divorce.
These rules will be introduced as soon as parliamentary time allows, but at the moment all divorce requires one party to prove that the marriage has irretrievably broken down by relying upon one of five facts. One of these facts is the other spouse’s unreasonable behaviour — you would have to show that your husband’s behaviour is unreasonable and it is intolerable for you to live together.
Most divorce petitions proceed on an undefended basis and the courts tend not to question the basis of an unreasonable behaviour divorce petition if it is undefended. However, a recent case highlighted the fact that if a divorce petition is defended, the person seeking the divorce must satisfy the court that the other spouse’s unreasonable behaviour is such that it isn’t reasonable for them to continue to cohabit.
It is common to include four or five examples of unreasonable behaviour in a divorce petition. These examples don’t necessarily need to be the direct cause of the breakdown of the marriage. You may be able to identify other examples of your husband’s unreasonable behaviour in addition to his phone addiction. If it were properly and fully drafted, you would have a good chance of persuading a court that the behaviour you have summarised does justify a divorce being granted.
There is no threshold as to what constitutes unreasonable behaviour. The impact of the behaviour is relevant, and we could explain in a divorce petition the effect your husband’s behaviour is having on you. The courts are becoming more used to taking into account the effects of technology on people’s lives, and how this can impact upon the breakdown of relationships.
In terms of the financial ramifications if you were to divorce, a court would look at the potential maximum income and your earning capacities. Without knowing about your financial situation, it isn’t possible to advise as to whether you may have to give your husband half of your assets. Where it has been a long marriage, and both spouses have made a full contribution, the courts often share assets equally. But every situation needs to be looked at based on its own individual facts.
Isobel Mundy, senior associate at BDB Pitmans, says the reasons cited in cases of unreasonable behaviour change along with social norms. The detrimental effect of mobile use and other technology on family life and relationships is well publicised. Excessive use of social media by one spouse often appears in divorce petitions based on unreasonable behaviour, along with other examples, or as a pattern of continuous behaviour which the petitioner can no longer stand.
The key point is that — until the no-fault divorce rules come into effect — the petitioner must show that the effect on them is so adverse that they can no longer tolerate living with the respondent. For that reason it would be prudent to seek legal advice as to the appropriate wording to use.
It is also good practice to show the petition to your soon-to-be ex and if possible to agree the wording. In practice, one party resisting the other’s petition for divorce is rare.
Turning to finances, the starting point is that both parties have an equal claim to all matrimonial property. This means the property and assets built up during the marriage and includes the family home, regardless of how, when, or by whom it was acquired.
Except in extraordinary circumstances, the fact that one party has earned more than the other has little or no bearing, as both are deemed to have made contributions of equal value to the marriage.
In some instances, it is possible to exclude property and resources that have been pre-acquired, inherited or purchased as a result of the special endeavour of one of you. In 2008, Sir Paul McCartney avoided having to share the majority of his £400m pre-acquired assets. In a recent case involving a six-year marriage where there were no children, the higher earning wife was awarded a greater share of the marital property.
However, the first consideration for a court is to ensure that needs are met, even if that means using “non marital” assets and each case is very fact specific. Legal advice should therefore be sought if you consider your circumstances would merit a departure from equality.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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