Answering your queries in relation to divorce
Our expert Family Law team answer some frequently asked questions in relation to divorce.
How long will my divorce take?
Generally, a straightforward, undefended divorce takes around 4-6 months, once the divorce petition has been submitted to the Court.
If the divorce is not defended then it can be a reasonably smooth process from issue to the pronouncement of decree nisi (a document from the Court that says that it does not see any reason why you cannot divorce). The divorce does not actually become final until the decree absolute has been issued (this document legally ends your marriage), which you can apply for at any time from six weeks after the decree nisi.
However, if your spouse is not co-operative in the divorce process then this could cause delays in you getting divorced.
How much will it cost to get divorced?
The current Court fee for filing your divorce petition is £550, which includes the fee for applying for the decree absolute. If you have low income or you are in receipt of some benefits, you may be able to apply to the Court for the fee to be reduced or even cancelled altogether.
In addition, there will also be the cost of any legal advice sought from a solicitor. In some cases, your spouse could be ordered to pay some or all of the cost of the divorce.
Do I need a solicitor to deal with my divorce?
There is no legal requirement for you to appoint a solicitor to handle your divorce. However, people who attempt to conduct their own divorces without the support and advice of a solicitor are often not aware of the issues it will present in the future, if not properly dealt with.
To avoid on-going disputes over financial claims, it is vital to deal with the divorce appropriately and in accordance with the law for the sake of you and your spouse.
What are the grounds or reasons for divorce?
There are 5 reasons for divorce that commonly get mixed up with grounds for divorce. The Court will want to establish which reasons have led to the marriage breaking down. These reasons are then recorded on the divorce petition.
In divorce proceedings, the person asking for a divorce is called the ‘Petitioner’ and the person who is being divorced is called the ‘Respondent’. The petition is the legal document that sets out the reasons for the divorce and the procedure is relatively straightforward.
When granting a petition for a divorce, the Court needs to be satisfied that one or more of the following reasons are present:
- Adultery – That the respondent has committed adultery and the petitioner finds it intolerable to live with him/her.
- Unreasonable Behaviour: That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her.
- Desertion – That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
- 2 Years Separation (with consent) – That both parties have lived apart for a continuous period of two years (which immediately precedes the presentation of the petition) and that the respondent consents to the divorce being granted.
- 5 Years Separation (without consent) – That the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
What am I entitled to following the divorce?
It is difficult for us to advise someone about this initially in anything other than fairly general terms, as it is essential to initially go through the process of financial disclosure. This will set out both parties’ financial positions and enable proper legal advice to be given, taking into account all of the important factors, such as the length of the marriage, age of the parties, their current and future income position, and a list of assets and liabilities.
These are just a few of the factors taken into consideration when deciding the fairest way to divide assets during divorce proceedings.
When we have this information we will be much better able to give you detailed advice about the likely outcome of the process.
How are the financial aspects of our marriage dealt with after we divorce?
When married couples decide to formally dissolve the marriage, the first step is usually to commence divorce proceedings. In the divorce petition there is provision for the petitioner to tick a box to say whether they want to deal with financial issues, such as maintenance or a lump sum.
When a couple separates sometimes they are able to reach an agreement amicably without the need for legal advice. However, it is vital that such agreements are then recorded in a consent order, as this will avoid issues in the future. Without a consent order, it is open to both parties at any time in the future to make a claim against the other’s assets. Therefore, the importance of seeking legal advice should not be ignored, even when the separation is amicable.
Can I claim spousal maintenance?
During a marriage, sometimes one spouse will stay at home caring for the children whilst the other spouse continues going to work, often increasing their income during that time.
Therefore, it is quite natural for the spouse that stayed at home to worry how they will meet their on-going financial obligations and needs, whilst the other spouse will also naturally worry that they will have to financially support the other spouse for a long-time.
Whilst financial support in such circumstances has to be considered, it is not something that will necessarily last in the long-term. The Court will of course take into account both spouse’s financial positions now and in the future, including any earning capacity that each may have. If one spouse needs financial support by way of maintenance and the other spouse has the means to provide this, then the Court might make an order requiring a payment of maintenance and in those circumstances the Court will consider how long any support should remain in place.
An alternative way of dealing with this, if there are sufficient assets, would be for a lump sum to be paid instead of maintenance or for one spouse to receive a greater share of the other assets, such as the family home, in order to achieve a clean break.
What happens to my children during and after the divorce?
Separating couples who have children will generally be able to come to an amicable agreement about the arrangements for their children without the involvement of the Courts. This includes where the children will live and what time they will spend with each parent.
If parents are not able to agree the arrangements for their children without assistance, we will encourage them to do so by referring them for mediation. There may be circumstances where a referral for mediation would not be appropriate, particularly where there has been a history of domestic abuse. If they are able to reach an agreement between themselves or with the help of mediation, it is usually not necessary for there to be a formal Court order.
However, in some instances, where the arrangements cannot be agreed by the separating parents, the Court may have to be involved to decide what those arrangements should be. In reaching any decision about the children, the first and most important consideration for the Court is the welfare of the children.
What are the alternative options of obtaining a divorce instead of going through the Courts?
There are currently three alternative options instead of going through the Family Court, which are:
- Collaborative Law – This process allows separating couples to work together with their respective solicitors to find an agreeable solution to the issues that they face during the divorce process. It allows the key aspects of a divorce, including arrangements regarding children and finances, to be discussed at face to face meetings. Each party in the divorce proceedings has the support of their own accredited collaborative law solicitor, with the aim of there been no involvement from the Courts.
- Mediation – Like collaborative law, mediation is an alternative dispute resolution, which aims to resolve the issues arising as a result of separation and divorce without the need for Court proceedings. The fundamental difference is that mediation involves the parties engaging in meetings with a trained mediator, who is impartial and there to assist them in resolving their disputes. The mediator will not give legal advice or favour either party. Each party would have access to legal advice away from the mediation sessions, however, unlike collaborative law, would not have the support of a lawyer in the meetings themselves.
- Arbitration – Another form of alternative dispute resolution, arbitration involves a third party (a family arbitrator) making decisions regarding the division of assets and finances during a divorce. The family arbitrator bases his/her decision on the relevant facts and information available to them, in order to make decisions on the allocations of finances. The arbitrator’s ruling is a legally binding decision, known as an “award”.
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