Divorce & Separation
Divorce is not a one-step procedure, and it’s built up of multiple processes which all need to be dealt with separately.
This includes actually ending the marriage, dealing with finances and assets, and then what happens regarding any children involved.
It is, of course, a lot easier to go into these proceedings with a clear head and willingness to compromise on what both parties want to happen; but this is easier said than done.
Ending the Marriage
At present, there is only one ground for divorce; the marriage has irretrievably broken down. This can be proven by evidencing;
- Unreasonable behaviour
- Separation for two years and the other party consents to the divorce.
- Separation for five years.
The party applying for the divorce is known as the Petitioner, the other is the Respondent. The process of ending the marriage can be broken down into four basic summaries of the stages:
The Petitioner prepares the divorce petition and sends it to the Court along with the original, or certified copy, of their marriage certificate and the Court fee of £593.00 (As the Court fee is means-tested, the petitioner may be suitable for a fee exemption or partial fee exception) if they are on certain benefits or a low income.
Acknowledgement of Service
Once the petition is received, the Court will send a copy of it to the Respondent, in response to which they must complete an Acknowledgement of Service form. This form indicates whether or not they intend to defend the divorce.
It is rare for a divorce to be defended, and more likely a case of the Respondent not responding/returning the form. In this case, a court bailiff or private investigator will be sent to formally provide another copy.
After acknowledgement has been received, the Petitioner needs to complete an application for the next stage; Decree Nisi. The Court will then decide whether they are entitled to a divorce. If yes, it will be stated in open court (Pronouncement of Decree Nisi).
6 weeks (...and 1 day) after Decree Nisi, the Petitioner has to apply for finalisation of the divorce. Next, the legal document which states that the parties are no longer married can be produced, this is termed Decree Absolute.
If this isn’t done by the Petitioner, the Respondent has to wait a further three months before being able to apply themselves. More often than not however, this will require a court hearing. It is generally advised not to apply for decree absolute until financial matters have been resolved or it’s possible you may suffer a financial loss due to losing certain rights you would have had as a spouse. E.g. the right to a pension of your spouse dies before a financial settlement is reached.
NB. The Divorce Dissolution and Separation Act 2020 will come into force on 6th April and changes the need to prove fault in divorce. Under the new act, either one party to the marriage or both can file a petition with the court indicating they wish to divorce. There is no need to use any of the five facts above. However, both parties then have to wait a minimum of 20 weeks before they can apply for decree nisi. This is a “cooling off” period to allow them to consider whether divorce is really what they want. Please check back later as we will be doing a more detailed update on this around the end of March.
The Petitioner can ask the Court to order the Respondent to pay the fees. If they refuse, both parties will need to attend a court hearing at the Decree Nisi stage to argue their side.
The Court will usually act in the Petitioner’s favour if the Respondent has acted unreasonably in the marriage, or been a major reason for the divorce.
Who gets what? - What will be expected financially?
The law entitles both parties to be able to make financial claims against the other against matrimonial assets; Divorce itself does not automatically end the right of either party to claim. it is advisable therefore to ensure you obtain a final financial order on divorce, which contains a clean break clause (to prevent further claims against each other in the future). This can be done by agreement or by application to the court for them to make an order if an agreement can’t be reached.
Decisions on how things are split can either be made by the parties (Consent Order) or if an agreement can’t be reached, by the Court through an Order (Financial Remedy Proceedings).
Duty of ‘Full and Frank Disclosure’
Both parties have an obligation to provide complete disclosure on all information regarding their finances. This disclosure also needs to be updated, so any changes in situation must be shared; for example, a pay rise or moving house.
What will be taken into account when deciding what goes where?
All properties, savings, investments, pensions, and any assets owned solely or jointly; plus any debts and loans – will all be considered when dealing with finances. Additionally, any other relevant circumstances can also be taken into account when deciding divisions between parties; these include the factors set out in the S25 Matrimonial Causes Act and include; The welfare of dependent children (which is the first consideration), age of parties, length of marriage, each parties’ income and earning capacity and other factors. Each case is decided on its individual facts.
What Orders can be put in place?
Spousal Maintenance - Periodical payments from one party to another
Property Adjustment Orders - Orders can be made for a sale or transfer of property, and/or in relation to who should occupy the property
Sharing of Pensions – The court can order pensions to be split, so one person receives a share of the other’s pension. The court can also make pension attachment orders (where part of the income from the pension is paid to the other party (but tend to avoid such orders if possible as they can be difficult to enforce).
The Court cannot order payment of Child Maintenance, except in limited circumstances and/or unless it is agreed. An agreed figure can be arranged and enforced but only for a limited period of time. Therefore, a separate application to the Child Maintenance Service needs to be made, if an agreement on maintenance can’t be reached. There is a set formula the CMS work to and generally it is advisable to agree on a figure based on this. If the CMS have to enforce maintenance payments, they make a charge, so it is more expensive if an agreement cannot be reached. There may be cases where the CMS calculation is insufficient/too high and legal advice should be sought if this is the case.
What about the kids?
If children are involved, the ideal scenario would be for parties in charge of their care to be able to agree on arrangements for them. Unfortunately, this is not always the case.
If an agreement can’t be reached then, either party can apply to the Court to make a Child Arrangements Order. Decisions made will always be approached by the court from the point of view of what is in the best interests of the child.
Don’t mess with the Status Quo – Generally, the court will try to maintain stability and consistency for children and generally therefore the must usually be a very good reason to change the settled living conditions of a child, and any orders made may change with circumstances.
In influencing the Court’s decisions, a report containing a recommendation of what, if any, order should be made will be put together. This is usually done by a Caffcass Officer or in cases where there’s a suspicion the child is at risk, by Social Care.
If the Court sees reason for them, it can put Orders in place when it comes to children. Orders will only be made if they are of more benefit than no order at all.
Child Arrangement Orders - With whom a child will live and spend time, and when the child is to live or spend time with anyone else.
Parental Responsibility Order – Granting the right to make major decisions about the child. If you are the mother of a child you will automatically have PR. If you are the father and married to the mother you will automatically have PR. If you are an unmarried father and your child was born on or after 3rd December 2003 and you are named on the birth certificate you will automatically have PR. Unmarried father’s not on the birth certificate can apply for PR or enter into a PR agreement with the mother.
Specific Issue Order & Prohibited Steps Order – Where major decisions can’t be agreed on between those who have Parental Responsibility, the Court will decide.