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You have to have been married for at least a year on the date you issue your petition for divorce.
You can issue a divorce petition while you are still living in the same house, the divorce would have to be based on unreasonable behaviour, or adultery if this is an issue. If you wish to use separation as the basis for your divorce then you need to have been separated for at least 2 years before the date of your divorce petition but your spouse must agree to there being a divorce, or five years if your partner is not agreeing to a divorce. It is possible to be separated whilst you are still living under the same roof if you are living separate lives, if you are relying on two years separation and for all or part of that 2 year period you have been at the same address you will need to demonstrate that you are living separately, the Judge will often ask for more information and details such as do you eat separately, sleep in separate bedrooms, attend social occasions together, shop separately for food and household items etc.
There are two options, only one provides you with a formal ‘legal status’, that is judicial separation. This is in effect the same process as a divorce in that it will be considered by a Judge and financial claims can be made against the other party. Generally Judicial Separation is used by those who for religious or cultural reasons are not wishing to be divorced. The alternative is to enter into a Separation Agreement or Deed of Separation, this does not change your legal status, it is used most often by couples who do not wish to use examples of unreasonable behaviour or base a divorce on adultery, perhaps to assist in maintaining amicable relations for the sake of any children or because they do not want to have a ‘fault based’ divorce and prefer to divorce ‘by consent’. Usually the Separation Deed will specify that after 2 years of separation one party will issue divorce proceedings and the other party will consent. The separation deed can set out the financial arrangements, such as whether to sell a property, how to divide the proceeds of sale and any other assets and whether maintenance is going to be payable. Couples need to be aware however that, even if you have such an agreement and set it out in a deed, when a divorce is issued the court can still make orders about financial issues. This is the case even of you have already reached an agreement, if for example the Court does not agree that your agreement is appropriate, or, the other party changes their mind about what you agreed when you separated, the court may take into account an agreement set out in a separation deed but the Court is not bound by it so you do need to think carefully about whether it is better to divorce as soon as possible. Divorce can be based on relatively mild ‘unreasonable’ behaviour and the reasons for the divorce have little or no bearing on financial issues and it is common practice to agree the details to be put in the petition. It is invariably better for both parties if you divorce at the time you separate, it means an agreement can be made legally binding on both of you in a consent order, there is no ‘comeback’ at a later date and so it provides certainty for both parties.
Divorce petitions are sent to one of 11 divorce centres for issuing.
There will be centres within each Region as follows: -
• North East: there will be centres at Durham, Doncaster, Harrogate* and Bradford
• North West: there will be one centre at Liverpool
• Wales: there will be centres at Neath, Newport and Wrexham
• Midlands: there will be centres at Nottingham and Stoke
• South West: there will be one centre at Southampton
• London and South East: there will be one centre at Bury St Edmunds
All divorce petitions and financial remedy applications should now be sent by post to one of the centres rather than to the local court, with the exception of urgent applications that require immediate issue. It is possible to attend in person at one of the centres to issue a petition with or without a financial remedy application where there is a counter service in operation, but this will not gain any advantage in terms of the way the application is handled subsequently
The court has to be satisfied the marriage has broken down irretrievably and the party who is seeking a divorce can no longer tolerate being married. The Petitioner (the person asking for the divorce) shows this in one of five ways, listed below.
The Respondent has committed adultery and the petitioner finds it intolerable to live with the Respondent.
The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted.
The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Incompatibility or 'irreconcilable differences' are not acceptable grounds for divorce. However, in these circumstances it may be possible to establish unreasonable behaviour (eg by failing to adequately respond to a spouse's emotional needs). You need to show that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. This can include such things as violence, threats, verbal abuse, alcohol or drug related behaviour, and gambling and other financial irresponsibility but less dramatic issues can also be valid grounds, such as disrespectful or undermining behaviour, or lack of a sex life, lack of emotional support or lack of interest in your career.
Generally when a relationship breaks down either party can issue divorce based on unreasonable behaviour as it is subjective, the behaviour does not need to be extreme and can be put in relatively mild terms. The advantage to issuing the petition is that you retain control in so much as it is possible, over the timescales. If you are issuing a divorce petition based on your spouse’s unreasonable behaviour you are able to ask the Court to make an order as part of the divorce proceedings that your spouse pays your costs; the court fee of £550 and any legal fees. This is one of the reasons you might want to be the party who issues the petition but it is common practice to negotiate on the issue of costs in order to encourage the other party to co-operate with the proceedings and allow the divorce to proceed smoothly. If adultery is an issue in the breakdown of your relationship then the party who has committed the adultery cannot issue divorce proceedings on the basis of the adultery, only their spouse can, but they may be able to issue using the alleged unreasonable behaviour of the other party.
Once the 'petitioner' has filed for divorce, (sent the petition and accompanying documents to court with the £550 court fee) a copy of the documents is sent to the 'respondent'. The respondent is asked to complete and return an acknowledgement of service, confirming that the documents have been received and stating whether he or she intends to defend the divorce.
Provided that the divorce is not being defended, the petitioner then swears an affidavit confirming that all the details on the documents are true. A Judge then considers the paperwork and decides whether the facts relied upon in the petition have been made out and show that the marriage has broken down irretrievably. The Judge might want to ask more questions or for further details if he or she is not satisfied that there is enough set out in the particulars in the divorce petition. When the Judge is satisfied that the grounds for divorce are made out then he or she will set a date when a 'decree nisi' will be given. Six weeks after that, the petitioner can apply for the decree nisi to be made absolute. Once the decree absolute has been granted, you are divorced (and free to remarry should you wish). It is usually not sensible to apply for Decree Absolute until you have resolved any financial issues arising out of the divorce however in order to ensure your financial position is protected so far as is possible.
If you and your spouse both agree to get divorced, and can reach an agreement between yourselves on finances and looking after any dependent children, you should be able to get divorced without having going to court in person. The divorce itself is dealt with by the court as a paper exercise and if you have an agreement on financial issues this can be drafted into a consent order and sent to the court for the Judge to approve without the parties needing to be present in court.
You remain married up until the moment when the Decree Absolute is pronounced, finalising the divorce. The petitioner can stop the divorce proceedings at any point prior to that and apply to withdraw the petition
Save for a very small number of cases, for example, where domestic violence has been a significant feature, legal aid is not available for divorce and family cases. If you are on a low income you may be able to claim exemption from the £550 Court fee required to issue the divorce proceedings however.
Provided the divorce is not defended by your spouse the divorce process itself is purely a paper process which typically takes around five to six months to complete. It is dependent on the court workload to some extent and also how quickly you and your spouse deal with the necessary documentation. Negotiations over financial arrangements can often take longer than this however and although you can apply for your Decree Absolute before you have resolved financial issues it is often advisable to wait until a financial agreement has been finalised.
You are officially divorced once the decree absolute is granted. The grant of the decree is officially recorded (in the court where the divorce was granted and in the Principal Registry of the Family Division in London) and you are each sent a copy.
The financial arrangements can be agreed separately at any time - before you start divorce proceedings, at the same time, or after the divorce itself has been finalised - though the financial arrangements cannot be finalised until after the Decree Nisi. It is usually advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the Decree Absolute (the order finally ending your marriage) is made. This is because potential benefits such as widow or widowers pensions and life insurance benefits can be lost in certain circumstances once the Decree Absolute is granted. For this reason it is usual to allow the divorce to proceed to decree nisi stage but not then apply for Decree Absolute until finical issues have been resolved.
The Court has wide discretion when considering financial claims after divorce and there is no set formula or calculation to assist. The Court will decide what happens to the assets on a case by case basis with regard to the individual circumstances, applying statute and principles which have developed though case law.
There are certain factors which the Court will apply when considering an application for financial remedy. These include the age and health of the parties, length of the marriage, your standard of living, income, earning capacity, financial resources, needs, obligations and responsibilities.
If, as in many cases, the assets do not exceed the requirements of the parties and any children then “needs” will be the determining factor. The needs of the children will be given priority and the court may have to divide assets that are non-matrimonial in order to meet their needs, the Court will be striving for equality and for fairness but sometimes these have to become secondary considerations because there are insufficient assets for both parties to be suitably re-housed.
If the needs of the children and each of the parties can be met, however, then other arguments will be considered such as assets having been brought into the marriage by one party alone or contributions to the family wealth due to some exceptional talent or business acumen.
Yes, once divorce proceedings have been issued either spouse can apply to the court for an order for sale. The Court has the power to make various orders in respect of the family home, including:
- Transfer of the home to either spouse, with or without the mortgage;
- Sale and division of the sale proceeds (not necessarily in equal shares);
- The property to be retained by one spouse until a specified event such as a child reaching 18, perhaps with a deferred interest.
The court has to give priority to the housing needs of any dependent children however so if there are not sufficient assets to meet both of your needs, priority will be given to the parent with care of the children, to ensure that he/she is suitably housed and their day to day income needs are met. It may be therefore that the court will not allow the house to be sold and orders the parent without care to continue paying some or even all of the mortgage to make sure the children are housed appropriately.
Yes, the factors which will be considered by the Court include both spouses’ contributions (including non-financial contributions such as looking after the home and children) and the financial disadvantage as a result of giving up work. The Court places equal value on financial contribution through earned income and contribution by raising the children and looking after the home. The Court has the power to make orders that pensions be shared in specified percentages and a pension sharing order will mean that a part of your spouse’s pension is removed from his pension and placed in a pension in your name in the same or an alternative pension scheme.
Currently, neither a pre-nup nor a post-nup is legally binding. They can however be influential on the Court in considering how assets should be divided so long as specific requirements have been met such as the parties having taken independent legal advice and provided full disclosure of their assets. Regular reviews should be built into the agreement to allow for changes of circumstances such as children being born. Pre-nuptial and post-nuptial agreements are more likely to be adhered to by the courts in cases where there are sufficient assets and income to meet the needs of the parties and any children.
No. Conduct of this nature will not have any impact on what a court will order in terms of finances. Bad behaviour on the part of your ex will only have a bearing on the financial settlement if it is very extreme and exceptional, or is of a financial nature: hiding assets for example or intentionally delaying or frustrating the court process. Judges are not influenced by how the parties have behaved towards one another when it comes to sharing out the assets but if one party has deliberately done something to try to defeat the other person’s financial claims or is not complying with court orders or the timescale set by the court then that may have an impact. Not providing full and frank financial disclosure is particularly frowned upon and the courts have been willing to overturn decisions where it has later transpired that there has been non-disclosure.
No, you do not have to reach a final agreement before you can be divorced. In divorce proceedings the court simply needs to know the names and dates of birth of any dependent children of the family but, in practical terms, you will need to sort out what is going to happen once you and your ex-spouse live in separate homes. Both parents share parental responsibility for the children and need to agree the arrangements for the children; where they will live and how much time they spend with the other parent. If the parents cannot agree then either parent can apply to the court to ask the court to make an order about where the children live and how much time they spend with the other parent. You will need to attend at an initial mediation information meeting first and the mediator will invite the other parent to attend mediation to try to resolve the issues but if you cannot agree then the court will make an order for such arrangements as it considers to be in the best interests of the children.
When purchasing a property it is advisable to enter into a declaration of trust which specifies the ownership of the property. If a property is owned jointly and you have not entered into a declaration of trust specifying the ownership then the starting point is that you both own the property in equal shares. However, if it can be shown that your intention at the time you made the purchase was different, or that the intention has changed over time but it is not clear exactly what your shares are, then the Court can decide whatever division is fair having regard to the facts of the case. This is a complex area of law and can be very costly so you should take expert legal advice.
A claim for financial provision on behalf of a child can also be made under Schedule 1 of the Children Act 1989. The Court has the power to order the transfer or settlement of property to the parent the child, or children, will be living with. Often in such cases the court will also order that the property be sold and proceeds divided equally once the children are independent.
The short answer is yes. If the house is in joint names then the other party needs your agreement, and estate agents should refuse to deal with just one party in marketing a property, but it does sometimes happen so beware! A sale can however be ordered by the court if your spouse or partner doesn’t agree. If this is necessary then it should be applied for within divorce proceedings so as to minimise costs and time and to make sure that the needs of any children are properly considered and protected.
Yes you do. In fact you probably need a lawyer more when you have an agreement about money than if you haven’t. If you and your spouse can’t agree then either of you can ask the court to make a decision. You have to issue divorce proceedings first and you will have to attend mediation at least once but if the mediator can’t help you agree then ultimately the Judge will make a decision for you.
If you have agreed what happens to the house, how other assets are to be divided and whether one of you will pay a monthly amount to help support the other then you must have this in a written consent order and have it approved by a Judge so that it is legally binding on you both and, more importantly, so that there is no ‘come back’.
Perhaps the most important part of any agreement is that it extinguishes any future claim that either of you could potentially make against each other so that you know your agreement is final and legally binding on you both. If you win the lottery, or if the other party gets into financial difficulties, your agreement remains. If you don’t have a financial consent order the future is uncertain for both of you.
You can only have a ‘no fault’ divorce if you have been separated for more than 2 years and the other person agrees (and you will need to wait five years if they don’t agree). If you want to get divorced before this then you will need to proceed on grounds of unreasonable behaviour or adultery which are ‘fault based’. The grounds for divorce rarely have any bearing on financial issues however and so the majority of divorces are based on unreasonable behaviour; it can be set out in relatively mild terms. It is good practice to send a draft of the divorce petition to your spouse to try and agree the details before you issue the proceedings.
No. You will however need to issue a divorce and have reached Decree Nisi stage (when the Judge agrees that you have grounds for divorce) before the court will be able to consider any financial agreement that you have reached. In the majority of cases you need to have divorce proceedings issued before you can ask the Court to make any orders about financial issues.
Yes. Before you can make an application for the court to deal with finances you have to attend at least one meeting with a mediator. Many couples find that mediation is successful and it is generally much faster and less costly than discussing matters through your lawyers. If mediation doesn’t work, the family courts are set up in a way that encourages you to reach agreement and the Judge will try and help you do this but eventually there will be a ‘trial’ and the court will decide. A Judge will decide which of you is telling the truth, and what should happen in your case.
They will say what assets are really worth and how they should be divided or reallocated and how much, or how little, each of you is able to provide for yourself and to what extent the other person should support you.
Primarily the court will be looking at the financial requirements of each of you, the Judge will consider what is fair of course but this can be a secondary issue if there are limited resources available. You will have heard cases of ‘being taken to the cleaners’; this is not because the law says it is right that one party takes all the assets, it is because there wasn’t enough to go around and the Judge decided one party needed it all. It is far better, and cheaper, to reach an agreement. The factors set out by law to be considered when dividing the financial resources on divorce are open to wide interpretation, Judges are human and sometimes they get it wrong.
The Courts don’t get involved in issues relating to children unless the parents can’t agree. Questions relating to children such as where they will live and how often they see the other parent are not automatically considered by the Court in divorce proceedings so if you want to see the children more often, or don’t agree they should live with the other parent, you will need to make a separate application.
No. When a relationship breaks down either of you can issue divorce proceedings. You don’t need the other party’s consent and cases where a divorce is refused by the court are extremely rare.