Figures released by the Office for National Statistics in December 2012 showed that Britain has the highest divorce rate in the European Union with an estimated 42% of marriages in England and Wales ending in divorce. Helen Bradin, solicitor at local Bradin Trubshaw & Kirwan LLP, warns that warring partners are often misguided or unaware of their legal position. Here she addresses some of the typical situations the firm advises on on a daily basis:

Q: Several months ago I found out that my husband was having an affair. Can I cite his adultery as grounds for divorce?

Helen: It is always difficult to cite adultery unless you can actually prove it or your husband will admit to the adultery in the proceedings. If you lived with your husband for six months after you found out about his affair you cannot give adultery as grounds for divorce unless the adultery is continuing. It is often easier to cite unreasonable behaviour giving details of the relationship as an example.

Q: My wife and I have lived separately for the past seven years. I would like to formalise our separation but she refuses to agree to a divorce. Can I file anyway?

Helen: Yes, living apart for five years or more is sufficient grounds to obtain a divorce without your wife’s consent.

Q: My husband and I have mutually agreed to separate and have to date remained on amicable terms. Now that he has come to think about the actual divorce proceedings he has become unfair in his demands. I don’t know why he would treat me this way?

Helen: Since you are possibly facing a court case your husband is probably feeling emotional and so is looking out for number 1 – he may even see you as his adversary. But, if you think that there’s still a chance that you can both compromise to reach a reasonable settlement, talk to your solicitor – solicitors should always consider settlement meetings wherever possible. Family lawyers should work with you and your husband’s lawyers to reach a divorce settlement without going to court. You will both be guided by your respective lawyers during face to face meetings, whilst the two of you remain in control of the process.

Q: When I married two years ago I owned significantly more assets than my wife – I also paid the initial deposit on our house – but now that our relationship has broken down my wife has assumed that our assets will be split 50/50. We don’t have any children so it seems unfair to me?

Helen: Your wife is correct in that the court’s starting point when dealing with financial matters is to split assets on a 50/50 basis. However, in short marriages it can be argued that someone has made a greater contribution or has pre-owned assets that should be retained by the person who owned them initially. This is a very complex area and something that certainly needs expert legal advice.

Q: I have heard that a pre-nuptial agreement is ‘not worth the paper it’s written on’?

Helen: Neither a pre-nuptial nor post-nuptial (entered into after marriage or civil partnership) agreement is legally binding in England or Wales. The law is under consideration by the Law Commission but in the meantime the best course of action is to take advice from a specialist lawyer so that you both understand what you are agreeing to. You must be prepared to disclose all details of the finances that will be governed by the agreement to ensure that it is deemed fair to both parties. The courts can take an agreement into account when dealing with financial matters but if there have been children since the agreement and the agreement has not been amended to reflect this, then the matter is far more complicated.

For advice on family and other legal matters contact Bradin Trubshaw & Kirwan on 01543 421840 for a consultation or email hcb@btpsolicitors.co.uk