In recent days the news has been overwhelmed with articles reporting that Angelina Jolie has petitioned for divorce from Brad Pitt after 12 years together and two years of marriage. Much of these reports are overflowing with legal jargon that leaves readers puzzled as to the meaning; irreconcilable differences, physical custody and alimony to name but a few. This Article will attempt to shed some light on these legal phrases and help to explain how the US divorce system differs from the procedure followed by Courts in England and Wales.
What does 'irreconcilable differences' actually mean?
It has been reported that Angelina has cited 'irreconcilable differences' as the legal basis for the divorce. Under the Law in the State of California, 'irreconcilable differences' is effectively a 'no fault' divorce. It means that a couple's basic fundamental differences make it impossible to stay married. Whilst Angelina will not have to place blame or prove fault, it will still be necessary for her to evidence that the marriage has broken beyond repair.
The procedure to obtain a divorce in England and Wales differs slightly from that in the US however it still remains relatively straightforward. Court Proceedings are needed to obtain the divorce but so long as it is not contested the actual divorce could take as little as four to five months to be concluded without the need for any Hearing. Under the Law in England and Wales there is currently no provision for a 'no-fault' divorce and it is not possible to cite ''irreconcilable differences' as a reason for divorce. Instead there is only one ground for a divorce and that is if you believe your marriage has irretrievably broken down. This needs to be evidenced in one of five ways:
- Unreasonable behaviour
- Desertion for two years
- Separation for two years where it is agreed at the end of the two years that a divorce should take place
- After five years' separation whether or not the divorce is agreed
What is meant by Physical Custody of the Children?
It has also been widely reported that Angelina is seeking sole physical custody of the couple's six children and is asking the judge to give Brad visitation rights only. In the US physical custody refers to where the children live on a regular basis. By asking for sole Physical Custody Angelina is effectively asking the Court to allow her to provide sole care for the children on a daily basis. This almost always means that the children will remain living with her as the parent that has physical custody. Judges in the US are often reluctant to order sole custody and there is a strong preference to order joint physical custody. Judges will only grant one parent sole custody when the other parent is found unfit or incapable of taking care of the child and there is clear and convincing evidence that such an order is in the best interests of the children.
In England and Wales the Courts will not automatically become involved in the arrangements for any children during a divorce. Instead involvement of the Court only becomes needed when agreement cannot be reached through the parties and requires a formal Application to the Court. This is always a last resort. Similarly to the US system the care arrangements will be decided by the Court on the basis of what is in the best interests of a child.
What about the Finances?
The Court's approach to finances in the State of California bears significance resemblance to that of the Courts in England and Wales. The starting point would be a split 50/50 of anything earned or acquired during the marriage. There has been speculation in the media whether a Pre-nuptial Agreement exists. Pre-nuptial Agreements give couples the possibility of attempting to 'ring fence' previously owned monies or investments from a divorce taking place and those assets being divided. Under the system in England and Wales there is never any guarantee that the Pre-nuptial Agreement will be accepted by the Court and it is vitally important that early legal advice is taken. In order to increase the chance of the Pre-Nuptial Agreement being subsequently upheld by the Court it will be necessary to ensure that the Agreement is basically fair at the time, both of the couple have received legal advice with full information being provided and the Agreement is not completed too close to the marriage.
It has been reported that Angelina has made no claim for spousal support. This is not surprising considering that Angelina has a reported worth of about $160 million and Brad is reportedly worth $240 million. Under the US system alimony (spousal support) is a legal obligation on one party to provide financial support to their spouse before or after marital separation or divorce. It is calculated after considering the factors prescribed by the law in that particular State. In England and Wales although alimony payments are referred to as maintenance payments the basic concept remains the same. Spousal maintenance payments may be ordered by the Courts in an attempt to balance the ongoing reasonable financial needs of the financially weaker party. The payment will be calculated in accordance with the parties' respective financial positions.
Whether Child Support will be payable will largely be dependent on the custody arrangements for the children. If the children live primarily with Angelina then Brad could be required to pay some form of Child Support and vice versa if the children live primarily with Brad. If custody is split 50/50 then it is unlikely that either party would pay Child Support. In England and Wales child support follows a similar arrangement although it is referred to as child maintenance. Agreement on the level of child maintenance can be reached in private between the parties on a family-based arrangement. If agreement cannot be reached then referral can be made to the Child Support Agency.
To find out more or discuss your individual requirements in further detail, our dedicated Family Law Solicitors will be delighted to help. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.