If you are getting divorced, or at the stage when you are thinking about doing so, it is likely to be an emotional and stressful time. You will require sound, sensitive advice from an experienced divorce lawyer.
Our solicitors will give you clear, cost-effective legal advice so that you are able to achieve the best possible outcome. You can expect our experienced divorce and family lawyers to be friendly, approachable and understanding.
All our divorce and family lawyers are members of Resolution. Resolution is an organisation for family lawyers who follow a code of practice that promotes a non-confrontational approach to family problems.
Getting divorced usually takes between four to six months. In most cases, it is a paper process and there will be no need for you or your spouse to attend court.
Either party to a marriage can apply for a divorce. The process begins by sending a divorce petition to the court together with the court fee. The petitioner is the person who makes the application and the respondent is the other party.
The petition needs to show that the marriage has irretrievably broken down. This is done by relying on one of the grounds of divorce. These include adultery, separation for two years and unreasonable behaviour. Unreasonable behaviour is the most common ground. Often the parties agree the terms of the petition before it is sent to the court.
The decree nisi
Once the court has received the petition and both parties have told the court they agree to the divorce (by way of the respondent filing an acknowledgement to the court upon receipt of the petition), the petitioner can apply for a decree nisi. If the judge is satisfied that the documents have been properly filed, they will issue the decree nisi confirming that there is no reason why you should not divorce.
Applying for the decree absolute
The final stage is the issue of the decree absolute. An application for a decree absolute can be made six weeks after the decree nisi has been issued. The decree absolute formally ends your marriage.
For those that do not wish to divorce for religious or other personal reasons but wish to formalise their separation and live apart you may want to consider a judicial separation. This could also be an option for those who have not been married a year. If you wish to live apart from your spouse and separate your finances we can also assist with agreeing the terms of a separation agreement.
We also advise on the process of annulment which will declare a marriage null and void. A decree of nullity can declare the marriage ‘void’ which means that the marriage was never legally valid in the first place or ‘voidable’ which means that the marriage is defective. The grounds for annulment are very specific and so it is important to seek legal advice at an early stage to determine whether you meet the relevant criteria and to guide you through the process.
How do I start the process?
You will need to complete a divorce petition and lodge it at court together with your marriage certificate and court fee of £550. The spouse starting the divorce has to rely on one of five facts as the basis for the divorce: adultery; unreasonable behaviour; two years separation and you both agree to a divorce; five years separation or desertion. You cannot start a divorce if you have not been married for at least a year.
Will a divorce based on the adultery or unreasonable behaviour fact impact on the financial settlement?
The reason for the divorce will not impact on the outcome of the financial settlement unless it is very serious personal or financial misconduct. Ideally, you should speak with your spouse to agree who should start the process and agree as far as possible the content of the petition. If you are relying on the unreasonable behaviour fact the examples of unreasonable behaviour do not have to be contentious and can include mild examples.
What if my spouse does not cooperate or agree with the divorce?
Once the petition has been issued, the court will arrange to send a sealed copy to the respondent together with an acknowledgment of service form to complete. You can only apply for the first decree, the decree nisi, once the court is satisfied that the divorce paperwork has been received by the respondent. If the respondent fails to return the acknowledgment form we can arrange for a process server to personally serve the petition on the respondent or if you received written confirmation that your spouse has received the paperwork you can consider an application for deemed service. Defending a divorce is a lengthy and costly process and is rarely successful.
Does it matter who starts the process?
If you can, you should speak with your spouse to agree who should start the process. The person who starts the process has more control over the pace at which the divorce progresses as they apply for the decree nisi and then the final decree, the decree absolute. The person who starts the divorce can also ask the court to make an order that the respondent pay their divorce costs if they are relying on the unreasonable behaviour or adultery facts.
My marriage has broken down but I do not wish to divorce, what are my options?
If you do not wish to divorce due to cultural or religious reasons but wish to legally separate you can consider a judicial separation. The process is similar to that of divorce, however you can start this process if you have not been married for at least a year and it does not bring an end to the marriage. Once granted you are no longer obliged to live together. You can also ask the court to approve a financial order dividing your assets as with divorce but the court cannot make an order in relation to pensions.
The reason for the breakdown of your marriage will rarely have an impact on how the family finances are dealt with. The court will treat the financial matters arising from your divorce separately to the divorce itself, though proceedings usually run alongside each other and most petitioners in a divorce suit will not apply for decree absolute until the finances have been addressed.
How the finances of divorcing couples are dealt with can be a difficult and contentious issue. We use our expertise and experience to help you achieve the best possible settlement, as no two cases are the same.
This includes using alternatives to court proceedings such as mediation and collaborative law.
We will work with you to provide clear tailored advice to achieve the best possible financial settlement for you.
We advise on all financial aspects following divorce including:
- The division and transfer of property
- Business assets
- Pensions both in the UK and abroad
- Spousal and child maintenance
- Interim maintenance
- Overseas assets
- Emergency orders such as freezing orders
- Enforcement of financial orders
- Variation of spousal maintenance orders
We can also assist separating partners in civil partnerships.
How do we resolve the finances?
You can resolve the finances directly with your spouse, at mediation or through solicitor negotiations. It is important that you provide an honest and complete account of your finances and exchange key financial documents such as bank statements, pay slips, pension statements and recent property valuations before negotiating a settlement. Once an agreement is reached it must be embodied in a consent order and sent to the court to be approved, once decree nisi has been pronounced. Once approved, the agreement will be legally binding and enforceable.
We do not have any joint assets do I need a court order?
Even if you do not own any joint assets you should still have a consent order approved by the court. Without an approved court order, you will remain financially linked to your spouse until a ‘clean break’ order is approved by the court. If your earnings increase significantly, you receive a large inheritance or win the lottery, a clean break order will provide certainty that your spouse will not be able to make a financial claim against you in the future. A clean break will not be appropriate in all cases so please contact us for further advice.
The family home was purchased by my husband – will I be entitled to a share if we divorce?
The family home is a matrimonial asset even if it is registered in the sole name of one spouse. The starting point for a division of matrimonial property is 50/50 with consideration being given to your respective housing needs and the needs of any minor children. If the family home is in the sole name of your spouse, you should register a matrimonial home rights notice against the property which will prevent your spouse from selling or mortgaging the property without your knowledge.
Will I have to pay spousal maintenance?
Spousal maintenance is based on the income needs of the financially weaker spouse. If there is a shortfall between their income and outgoings the higher earning spouse may have to pay spousal maintenance. You will have to negotiate how much is to be paid and for how long, considering the standard of living during the marriage and the paying party’s income. An order can be made on a ‘joint lives’ basis or for a fixed term depending on the circumstances of the case. Spousal maintenance is a complex area, so it is worth taking further advice.
What will happen if we cannot reach an agreement?
You can make an application to the court for a financial remedy order should you be unable to reach an agreement or negotiations break down. It is a requirement to attend mediation before making a court application. The court will set a timetable for the resolution of the finances and there are usually three hearings including a final hearing. Even if court proceedings have started you can still reach an agreement at any stage of the proceedings – but it is important that you seek legal advice at an early stage.
Our aim is to help families reach an agreement on matters relating to their children however where an agreement cannot be reached either directly or at mediation we are able to advise you on your options and guide you through the court process.
Areas we advise on include:
- Child Arrangements Orders to determine where and with whom your child shall live and when your child spends time with the other parent.
- Obtaining parental responsibility for fathers or step-parents either by entering into a parental responsibility agreement or obtaining a parental responsibility order.
- Obtaining a specific issue order where parents cannot decide on important matters in relation to a child’s upbringing such as education and schooling, religious upbringing, medical treatment, holidays abroad and change of name.
- Where there are concerns that a parent is taking steps that may not be in the child’s best interests such as planning to relocate abroad or in the UK, change of name, a course of medical treatment we can assist with obtaining a prohibited steps order to prevent the parent from making such decisions without the courts permission.
- Relocating abroad with your child or relocating within the UK. If a parent is planning to move abroad with their child and the other parent does not consent they must make an application to the court for permission to remove the child permanently from the jurisdiction.
- Rights for grandparents and Special Guardianship Orders.
Do I have parental responsibility for my child?
You will have parental responsibility for your child if you were married to the mother at the time the child was born or named on the child’s birth certificate after 1 December 2003. If you are not married or your child was born prior to 1 December 2003 you can acquire parental responsibility by entering into a parental responsibility agreement with the mother or re-registering the child’s birth. If the mother does not agree, you should apply to the court for a parental responsibility order.
My partner/spouse and I have separated and we can’t agree on arrangements for our child. What are my options?
If you cannot agree on arrangements directly, you can attend mediation to try and reach an agreement with the assistance of a neutral third party. If mediation is not successful, or is not suitable in your case, you can apply to the court for a child arrangements order to deal with where your child shall live and when they spend time with each parent. There is a requirement to attend a Mediation Information and Assessment Meeting (MIAM) at a local mediation service prior to starting court proceedings. Please contact us for further information on the court process.
Do we need to have a court order in place if we divorce?
If you are able to agree on child arrangements, you will not need the courts to become involved. You can set out the terms of the agreement in a parenting plan or parental agreement if you would like a record. If you would like the agreement to be made legally binding, we can assist you in preparing a consent order and lodging it at court to be approved.
Can I stop my ex-partner from moving abroad with our child?
If you have legal parental responsibility for your child, your ex-partner cannot take your child to live abroad without your consent or a court order. If you do not consent, your ex-partner will need to make an application to the court for permission to remove your child permanently from the jurisdiction. If you have concerns that your ex-partner will take the children abroad without your consent, we can assist with you with making an application to the court for a prohibited steps order. If you find yourself in this situation it is important to get legal advice as soon as possible.
How are child maintenance payments worked out if we separate?
You may be liable to pay child maintenance to the parent who has day-to-day care of your child. You can either agree the amount directly or contact the Child Maintenance Service to carry out a calculation. You can also look at the online calculator. Child maintenance is payable in respect of a child under 16 or between 16 and 20 if they are in full-time non-advanced education. The amount payable will depend on the paying party’s gross annual income, capped at £156,000 per annum, the number of children and the number of overnight stays with the paying party.
Many unmarried couples live together. A common misconception is that after living as a couple for a period of time, two people become common law husband and wife. As such, it is believed they have the same rights as a married couple. This is wrong; a common law marriage does not exist.
If you live with someone, we can help you take steps to provide some legal protection for you and your partner. This includes minimising legal and financial issues that can arise if you separate or one of you dies. A cohabitation agreement can be a worthwhile step to help prevent a later dispute and our family lawyers are experienced in preparing these.
We also advice on all aspects of relationship breakdown including disputes between unmarried partners in relation to property and financial provision for children.
Assets such as property are not divided as they would be on divorce regardless of the length of cohabitation. We advise on claims under the Trusts of Land and Appointment of Trustees Act 1996 to determine the nature and extent of property ownership and whether the asset should be sold. This is a complex area of law and so it is important to seek early legal advice.
Unmarried partners can make a claim for financial provision for children under schedule 1 of the Children Act 1989. The financial provision can cover top up orders for maintenance where the maximum assessment has been made by the Child Maintenance Service, payment of school fees, lump sum payments, purchase of a property or contribution towards housing costs for the benefit of the child.
Do cohabitants have the same rights as married couples?
Contrary to popular belief, a ‘common law marriage’ does not exist. Cohabiting couples are not afforded the same rights as married couples on relationship breakdown in terms of financial support, property and pension division, even if they have been living together for decades.
What is a cohabitation agreement?
A cohabitation agreement is a contract which sets out a couple’s financial rights and obligations towards each other whilst living together and details what should happen in the event of relationship breakdown. It can cover how assets and property are owned, the payment of household bills, payment of debts and how property, income, savings and other personal items will be divided if you split up. The agreement should be reviewed when there is a significant change in circumstances such as the birth of a child or serious ill health.
Are cohabitation agreements legally binding?
They are legally binding provided they have been drafted and executed properly and signed as a deed. It is therefore essential to give yourself sufficient time to consider exactly what you want included in the agreement. You should also take early independent legal advice and ensure that you have a clear picture of your partner’s financial position.
What will happen to property if we separate?
If the property is jointly owned then it will be assumed that you will each have an equal interest in it, unless there is a declaration of trust setting out each person’s interest in the property. If you are considering purchasing a property jointly but will be contributing different amounts to the deposit, or intend to make a financial contribution despite not being one of the registered owners, you should have a declaration of trust drawn up at the time of purchase. Our residential property team can assist you with this.
If you are living in a property registered in the sole name of your partner, your partner will retain the legal ownership of the property on separation. You may however have a potential claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under these proceedings, a court will decide if you have a beneficial interest in the property and the extent of that interest. The law of trusts is a complex area so please contact us for further information.
How can I ensure our child’s financial interests are protected?
The Child Maintenance Service will deal with all cases where the non-resident parent earns less than £156,000 gross per annum. In higher income cases, there is the option to make an application under Schedule 1 of the Children Act 1989 for additional financial provision for the benefit of the child. This can include top up maintenance following a maximum assessment by the Child Maintenance Service, payment of school fees, a lump sum or monthly payments to cover specific items and expenses for the child. It can also include the purchase or a transfer of property to the parent with day to day care of the child which will revert to the paying parent when the child reaches 18 or finishes full time education.
If you are experiencing domestic abuse and do not wish to pursue criminal proceedings the Family Courts can offer protection by granting a civil injunction. Domestic abuse covers emotional, financial and psychological abuse as well as physical or violent behaviour.
There are two mains types of injunctions:
Non-Molestation Order – these orders prevent a partner, a former partner, a spouse or a wider family member or a member of your household from using or threatening violence, intimidation and harassment. A breach of a Non-Molestation Order is a criminal arrestable offence.
Occupation Order – if you do not feel safe in the family home an occupation order can regulate the occupation of the property such as preventing the perpetrator from occupying the property or coming within a certain distance or allow you to return to the property if you have left in fear of your safety.
Our family solicitors can assist you in obtaining an injunction including representation at court and if you are in immediate danger we can also obtain an injunction on an emergency basis.
We also advise and represent those who have been accused of domestic violence and have been served with court paperwork.
What is domestic abuse?
Domestic abuse covers any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality. It can include physical, emotional, psychological, sexual or financial abuse, harassment, stalking and forced marriage.
How do I obtain a non-molestation order?
If you are being subjected to domestic abuse by someone you are in a relationship with, an ex-partner or spouse, family member or someone you are living with, you can apply for a non-molestation order. This application can be made by giving notice to the other party or on an emergency basis without the other party being present at court if you are at risk of immediate harm. You will need to complete an application form and submit a statement summarising recent events and your reasons for needing the protection of an order. There is no court fee for the application. If you obtain an order on an emergency basis, the court will list a second hearing date within a week to give the other party an opportunity to respond to the application.
Can I remove my ex-partner/spouse from the family home?
If you have been subjected to domestic abuse, you can apply to the court for an occupation order. An occupation order regulates the occupation of the family home and can include who is to live in the property, who is to pay the mortgage or rent and can also exclude a person from the property for a period of time. The decision whether to make such an order is not taken lightly by the courts and they are usually only in place for six months. The court will consider the parties respective housing and financial resources, past behaviour and take into account effect of the order on the health safety and wellbeing of the parties and any children.
I have been served with a non-molestation order. What do I do now?
It is important to seek legal advice as soon as possible. We can guide you through the court process and prepare a statement in response to the allegations made against you and arrange representation at court. If the order was obtained on an emergency basis, you will be required to attend a further court hearing where you will have the opportunity to confirm whether or not you intend to defend the proceedings. If you wish to defend the allegations, a final hearing will be listed where you will both be required to give oral evidence. It is important that you attend all court hearings, failing which the court may make an order in your absence.
What will happen if my ex-partner/spouse breaches a family court injunction?
Breach of a non-molestation order is a criminal arrestable offence, punishable by up to five years imprisonment or a fine, depending on the seriousness of the breach and the number of breaches. Occupation orders usually have a power of arrest attached to them, which allows a police offer to arrest the person in breach of the order and is punishable by imprisonment or a fine.
Many couples now enter into agreements that set out how their assets are dealt with if their relationship breaks down.
A prenuptial agreement (or ‘prenup’ as it is often called) is an agreement made by a couple before they get married or enter into a civil partnership. A postnuptial agreement is made during a marriage or civil partnership. Both agreements set out how the couple wish their assets to be divided if they get divorced or dissolve their civil partnership.
Prenuptial and postnuptial agreements are especially popular with people who marry later in life, if they have children from a previous relationship, or where there is inherited wealth or business assets they are bringing to the marriage and which they want to be ring-fenced.
Although these types of agreement are not strictly legally binding yet in the UK (because the UK courts retain a wide discretion in determining financial settlements on divorce), if properly drafted using the guidance of case law, they are likely to be persuasive.
Are prenuptial agreements legally binding?
A prenuptial agreement is an agreement entered into by a couple before they marry or register a civil partnership. They are not strictly legally binding in the UK, however the courts are increasingly giving weight to them if the agreement was signed at least 21 days before the wedding, it was entered into freely after having taken independent legal advice and you have exchanged financial disclosure. In some cases, the court may not give effect to the agreement if the current circumstances would make it unfair.
Do I need a prenuptial agreement?
In the event of a divorce without a prenuptial agreement in place, the starting point for a division of assets will be 50/50 taking into account the parties respective income and housing needs with the needs of any minor children to be given priority. You should consider a prenuptial agreement if you have children from a previous relationship and wish to protect their inheritance, if you will be bringing assets or property to the marriage, you earn significantly more than your partner, you own a business, you wish to protect a future inheritance, or if one party has significant debts accrued before the marriage. We can tailor the agreement to your specific circumstances so please contact us for further information and advice.
What should a prenuptial agreement cover?
It should set out ownership of all property and business assets, savings, investments, personal belongings and how they should be divided in the event of marriage breakdown. It can cover how property and pensions will be divided, whether maintenance will be paid by one spouse to another and maintenance for any children.
When should I start the process?
You should start the process at least six months before the wedding or earlier. You should ensure that you both have sufficient time to seek independent legal advice and exchange financial disclosure. Quite often the agreement will go through several drafts and so it is important that you give yourself sufficient time to review it to ensure that it covers everything. The agreement should be signed at least 21 days before the marriage.
What is a postnuptial agreement?
A postnuptial agreement is an agreement entered into if you are already married, detailing how your assets will be split if you were to divorce or legally separate. You may want to consider having one in place if you have received a large inheritance during the marriage or have been through difficulties and want to protect your position in the event of a divorce. A postnuptial agreement can also record that in the event of a divorce you will seek to ask the court to approve a consent order on the terms of the postnuptial agreement. Like prenuptial agreements, postnuptial agreements are not strictly legally binding but will be taken into account by the courts if entered into freely and voluntarily after taking independent legal advice and there has been full financial disclosure.
What is Family Mediation?
Family mediation is a confidential form of dispute resolution for separating couples. A mediator is a neutral third party who is trained to help a couple resolve issues surrounding their separation, such as housing, finances and the children. Often described as ‘a better way’ than battling things out in court, mediation keeps the separating couple talking and listening and aims to improve communication even in the trickiest cases.
The mediator’s role is to help you to clarify what issues you can agree on and what issues need to be resolved. Mediators that are legally trained can give you legal information but will not advise either client specifically, as their role is impartial – they will not ‘take sides’. By exploring the options with you both in detail, it is hoped that a workable solution can be found.
When do you mediate?
Mediation can be used to tackle certain issues or a whole range of issues on divorce/separation. Often clients will have consulted solicitors and it is recommended that they retain their services to provide them with specific advice along the way. Some clients will only use mediation until an agreement is reached. Once an agreement is reached in mediation (because the agreement remains confidential), the solicitors will then draw up a legally binding document to be filed at the court.
Benefits of mediation
There are many benefits of mediation, but a few are listed here:
- Mediation can be less stressful, less time consuming and less costly than the court process. The timetable is set by the clients to fit their own busy lives.
- Mediation gives the couple the power to address their issues between themselves and make their own proposals rather than having a decision ordered by the court.
- Mediation provides a controlled and managed environment to discuss often tricky issues.
- Clients can cover all aspects of separation/divorce within mediation.
- By communicating with each-other directly, mediation can help clients to both move on from the relationship with dignity and look ahead to the future, rather than dwelling too heavily on the past.
- Mediation is less expensive as clients split the cost of the mediator’s hourly rate between them. Most work is done in the sessions themselves so costs can be kept down.
For more information