Google Adwords 0808 278 1398 Bing Ads 0808 274 4482

FAQs – Divorce | Financial Settlements | Children

When planning family law issues, you need to know the potential benefits and pitfalls of your choices. Take some time to look at our family law FAQ’s if you need some quick answers to family law questions, or want to learn more about your options.

There are three separate elements to the divorce process:

  • The divorce itself – the ending of the marriage
  • Financial arrangements – agreements as to how assets will be divided, including pensions and possible maintenance payments
  • Child arrangements – agreement on the arrangements for looking after any dependent children.

Divorce: The divorce process begins when either you or your spouse, the ‘applicant’ files the Application (formerly divorce petition) with the court. 

Financial arrangements: With regard to financial arrangements, these can be agreed separately either before divorce proceedings have started, at the same time or after the divorce itself has been finalised. It is important to know that the financial arrangements cannot be finalised until after the conditional order.

Child arrangements: If possible, agreement should try to be reached with regard to how any dependent children will be looked after. Our factsheet provides guidance on how to reduce the impact of separation on children. 

The divorce application (also referred to as form D8) is the court document used to apply for divorce and once filed at court is sent to the respondent spouse.  The application will be made oline.

You will need:

  • A clear legible copy of your marriage certificate which can be uploaded with your Application.
  • The court fee which is currently £593.00 or if you qualify for a fee remission, you will need to provide the fee exemption form from the court
  • Instructions to your solicitors to complete the divorce application, if using solicitors.

Day 1:  File divorce/dissolution application online.

28 days:  From the date of issue of the application, the court will serve the respondent or both parties (if this is a joint application) via email.  If the applicant wants to deal with service, it is anticipated that service should be undertaken within 28 days from the date of issue of the application.

14 days: From the date of service of the application time to file acknowledgement of service, or

35 days: From date of service time to file answer.

20 weeks:  From the date of issue of the application, provided the acknowledgement of service was served within 18 weeks from the date of issue the applicant can apply for the conditional order.  If the acknowlegement of service was served later than 18 weeks from the date of issue of the application, the time to apply is no earlier than 14 days after the acknowledgement of service should have been filed.

6 weeks:  After the date of the conditional order both parties or one party can apply for the divorce order  If the application is made by one party that party must give 14 days' notice of their intention to apply.

Costs:  Ordinarily costs orders would have been pursued if the applicant issued on the grounds of unreasonable behaviour.  Claiming costs under the new procedure does not appear to be addressed and so we presume that if a joint application, both parties will discharge the fee jointly.  If it is not a joint application, the Applicant may have to cover the court fee themself.  

No, it doesn’t make any difference. Usually, if only one spouse wants to divorce, they will be the one who files the Divorce Application. An application can be made jointly if agreed.

There is no longer any need to attribute fault on the part of your spouse to start the divorce process.  The ground will be the irretrievable breakdown of the marriage.

You cannot issue a divorce petition until you have been married for one year. If your marriage breaks down before you have been married for a year, you may want to separate in the meantime and agree arrangements for finances and any children who are involved.

After one year, a petition can be issued based on the irretrievable breakdown of the marriage.

No, it doesn’t make any difference who caused the divorce to the outcome either financially or in respect of arrangements in looking after dependent children. No fault will be attributed on the divorce application and so the court will not know exactly why the marraige failed.

A Conditional Order is an order of the court acknowledging that the applicant is entitled to a divorce.

Approximately 30 weeks although delays by either side and disagreements over financial issues are common factors that slow progress, making the process take longer. If both parties cannot agree, or there are delays returning paperwork, then this can extend the time and increase costs.

Six weeks after the date of the conditional order, the applicant can apply for the divorce order.  The applicant must give their spouse 14 days' notice of their intention to apply.

The Final Order is a court order that officially ends a marriage. This will not be issued until at least 6 weeks after the date of the Conditional Order. Once the Financial Order has been issued you are free to remarry.

The divorce cannot be contested and is straighforward however, delays by either side and disagreements over financial issues are common factors that slow progress, making the process take longer. If both parties cannot agree, or there are delays returning paperwork, then this can extend the time and increase costs.

You can get a fixed fee divorce.  We provide a fixed fee of £700 + VAT for the divorce element only. For issues over money, property or children, you will need our full-service package. For details of our packages, please click here. https://www.qualitysolicitors.com/moore-tibbits/divorce

Everybody’s circumstances are different, from those couples who have agreed everything to those that are acrimonious with possibly more complex financial issues.

Whatever your circumstances, having the right divorce lawyer is vital to ensure you get the absolute best outcome for you but just as important is that you have a good customer experience with your lawyer through this stressful period of your life.

The basics

If you are divorcing someone: If you start the divorce proceedings, you will be known as the applicant. You will be responsible for paying the court fee which is £593 as well as your own lawyer’s fees. 

If someone is divorcing you: You will be known as the respondent. Again, we offer fixed cost packages depending upon whether the divorce is contested or not.

For further details of online divorce, our fixed fee packages, assets and pensions, child arrangements and the collaborative process, please click here

Legal aid is not generally available for divorce and family cases however, where there has been a significant factor such as domestic violence or a child is at risk of abuse from the other person involved, legal aid may be available.

There is no providsion yet under the new rules.  If it is a joint application, costs can be shared, otherwise the Applicant is likely to pay.

An uncontested divorce is the term used when you agree with the divorce and don’t try to defend it. Under the new rules you can no longer defend the divorce.

You are not legally required to try mediation or counselling but they can have advantages in helping to ease any hostility and reaching agreements. Counselling services tend to focus primarily on the emotional side of the break-up. This can be useful if only one partner wants to get divorced and can help with understanding each other’s feelings. It can sometimes make it easier to negotiate an agreement and even may encourage couples to give their marriage a second chance.

Mediation services involve a skilled mediator helping you and your spouse to negotiate agreement on issues such as finances and childcare arrangements. We would advise before reaching any final agreement that specialist legal advice is sought.

Resolution is a community of family justice professionals who work with families and individuals to resolve issues in a constructive way with as little conflict as possible. Carline Gayle-Buckle of Moore & Tibbits is proud to be a member of Resolution and also a trained collaborative lawyer. Details of Resolution can be found here. www.resolution.org.uk.

Under the new rules, a divoce cannot be defended.

If the divorce involves children, significant sums of money, pensions and assets, using a solicitor is strongly advised. A solicitor cannot act for both spouses, you should each have your own solicitor.

Using a solicitor can ensure you understand what your rights are, what would be a reasonable financial settlement and help with negotiating agreement on financial arrangements and how any children will be looked after. A recent survey conducted by Resolution has highlighted that seeking legal advice early would have helped with the personal experience of the divorce process for not only the spouses, but the children involved as well.

The more information you can provide to your solicitor, the easier it is to understand your circumstances and to advise you. The information provided should include:

It is also important to discuss with your solicitor your major objectives eg. ensuring that the children stay with you or that you have reasonable contact with them, staying in the family home etc. Delays in providing important information can increase delays and costs.

Evidence of your identity will also need to be provided such as your passport and latest bank statement.

  • Why the marriage ended
  • Which of you is applying for the divorce and whether you have both agreed to the divorce.
  • You and your spouse’s major assets eg. houses, pensions, savings etc.
  • You and your spouse’s income and outgoings
  • Details of any dependent children under the age of 18, still in in full time education or having special needs.

Emotions can run high during an acrimonious divorce but it is essential, especially if children are involved to try and remain calm and sympathetic to try and reach an agreement without involving the court. The longer negotiations continue, the higher the costs will be with the potential for a negative impact on any children involved. If your spouse continues to be unreasonable and any negotiations are not working, court may well be a more cost-effective route. The court timetable may well help your spouse to focus on the issues involved.

You will need to notify any person or organisation who needs to know about your marital status for example:

  • Your employer: Health benefits, pension scheme or any other employment related benefits may be affected.
  • Department for Work and Pensions: If you are receiving benefits, you should notify the Department for Work and Pensions. You may have to notify earlier if you separate as this could affect eligibility for some benefits.
  • Joint bank accounts/memberships: A woman who wishes to revert to her maiden name should notify organisations such as banks and government departments.

It is also important to check any insurance or other policies to ensure they have the correct beneficiaries as well as making an up-to-date Will.

A copy of the Final Order is generally all the documentary evidence you need to provide.

Neither party to the marriage is free to remarry until the final decree of divorce has been made known as the Final Order.

We would recommend updating your will as soon as you decide to separate. Whilst you are still legally married, your Will remains valid. This means that your spouse will still be entitled to inherit as per the terms of the Will. If you die without a Will, before you have received your Final Order, your spouse will inherit from your Estate. Without a Will in place, the law decides how your estate will be distributed (following the intestacy rules). You lose the right to choose and the result may not be what you would have intended which could lead to potential legal problems for those you love. For more details on divorce and wills, click here. https://www.qualitysolicitors.com/moore-tibbits/news/2020/07/how-does-a-divorce-affect-my-will

News and media

FINANCIAL SETTLEMENTS

Financial negotiations can be dealt with at any time, either before, during or after the divorce. Whilst it is not necessary for negotiations to have been completed before the divorce has been finalised, it is sometimes advisable that any arrangements are agreed and recorded in a Consent Order before the divorce is finalised.

It is important to note that financial agreements are completely separate from your divorce. Whilst a Final Order severs the marriage, it does not sever the financial commitment that exists between you both. Many couples discuss agree and finalise their financial arrangements before the Final Order is issued. A financial order including a Clean Break Order will sever financial commitments between you both whilst a Maintenance Order will detail how long any maintenance payments will need to be paid for.

We would recommend that legal advice is taken with regard to any agreement as this can be a very complex area of law. If an agreement has been made, to protect both parties, it is important that the appropriate documentation is drawn up confirming the terms of the agreement

If both parties can agree to a financial settlement, it can be a lot quicker than applying to court for a financial settlement, which can take anything between 6 to 12 months. It is important to remember that a financial settlement is separate to your divorce and that a settlement can be made before, during or after your divorce.

No, it does not but it may make matters more complex. This is especially the case if either of you were to remarry before resolving financial issues with your ex-spouse.

Leaving the family home should not affect any final settlement however, you may find yourself in a weaker negotiating position eg. if you are struggling to pay rent in new accommodation, you may want to negotiate the sale of the family home as soon as possible. Also, the spouse remaining at the family home may be less inclined to resolve issues quickly as she/he wants to remain in the home.

Whilst you are still married, the family home is a matrimonial asset and you are entitled to enter it. If you are not registered as joint owner of the property you should lodge a note of your interest with HM Land Registry. Your spouse should not legally change the locks at the property but may do so and therefore, if you decide to leave the family home, make sure you take any important documents, clothing etc. with you.

When a couple separates, all of the matrimonial assets will be taken into account before any settlement proposals can be considered. The family court would consider what is fair based on the length of the marriage, contributions made by both parties, whether there are any dependent children and so on. The matrimonial home is often the largest asset and the court has the power to make orders in relation to matrimonial assets regardless of how they are owned and by whom. Often, the value of the matrimonial home will be shared equally regardless of who bought it.

Spousal maintenance is primarily a way of meeting the gap in funds to cater for a person’s essential needs. In some circumstances, a person may have given up a career in order to bring up children and there is often no way for them to go back to their previous job after so long. As a result, they will need an income to be able to move on with their lives and it is for the courts to decide how much and for how long. The court does not award indefinite maintenance payments unless the facts of the case require it. The court will consider when the person receiving the maintenance payments will be able to adjust to the payments coming to an end without due hardship. Sometimes circumstances may change and you may want to stop paying maintenance which has previously been agreed by a court or reduce the amount you want to pay. Be warned, if you stop payments without agreement, your spouse can go to court to enforce the award. In some circumstances it may be possible to cease payments or pay a lump sum instead of continuing payments known as capitalising payments. Specialist legal advice should always be sought in these circumstances.

Whilst agreement on the financial settlement does not have to be decided before the divorce can be finalised, we would strongly advise that agreement is reached and an order made before the Final Order is issued. This is to protect all parties as in some circumstances, important entitlements such as pension rights can be lost once the Final Order is granted.

By declaring bankruptcy following a divorce does not mean you are no longer responsible for your financial obligations. Claims and awards still exist, however some assets may well be reduced. If you are concerned your partner may be facing bankruptcy, please get in touch with us for advice on how you can proceed.

Any agreement reached during divorce proceedings should be properly drawn up, usually by way of a Consent Order which is lodged with the court and approved by a Judge. Once approved by the court, it becomes a legally binding document and can only be challenged in very limited circumstances and so you can apply to the court for enforcement of the terms set out in the Consent Order.

This will depend on the terms of the agreement reached. We would always recommend that you seek legal advice to ensure any agreement is properly drawn up to avoid any future problems.

A pension is viewed as an asset of the marriage and the value of the pension fund will therefore be considered as part of any proposed settlement. The length of marriage, ages of parties, number of children and other assets involved will all be taken into account. Pensions can be dealt with by way of offsetting which means you get a bigger share of the other assets but you do not get the benefit of a Pension Sharing Order where you receive an actual share of your spouse’s pension fund. This area of law can be very complicated and we would advise you seek specialist legal advice. Carline Gayle-Buckle of Moore & Tibbits previously trained as an economist and has particular expertise in complex financial matters including disputes relating to business assets and pensions. She has a wealth of experience in family law and is well known for her strategic planning to get the best possible results for her clients. For more information on pensions and divorce, please click here https://www.qualitysolicitors.com/moore-tibbits/news/2020/08/what-happens-to-my-pension-on-divorce

There is a duty of full and frank disclosure of matrimonial finances on both parties. If court proceedings are required, Form E is a lengthy document which is completed by both parties and provides the court with most of the information needed to resolve disputes. Even if court proceedings are not issued to achieve a fair settlement full financial disclosure of both parties’ assets should take place so you can be certain of the value of the assets to be divided between you both.

This will vary depending on an individual’s circumstances and needs. The court has a very wide discretion as to the orders it can make and will balance the needs of both parties and also any children who are involved. We would recommend you seek specialist legal advice early on so you are aware of your rights and options.

CHILDREN

If there is agreement between both parents as to the arrangements for their children (i.e. where they will live and contact arrangements) the court does not need to be involved and the parties are perfectly entitled to continue on an informally agreed basis. Indeed, this is what most separating parents do.

No. Agreement as to child arrangements are separate from the divorce. That said, if there is a dispute about the child arrangements then it is always best to try to resolve that as soon as possible.

There are various options to try and resolve issues and reach agreement in relation to child arrangements:

  • Mediation: When parents are unable to agree matters between themselves, mediation can often help to reach an amicable agreement. It may well be quicker and more economical than going to court.
  • Solicitors: Each parent can instruct a solicitor with the aim of resolving the issues with the minimum amount of stress, especially for the children. Our Barrister, Karol Kalizcak has extensive experience in dealing with child arrangements. Please call him for a free initial consultation if you have concerns about child arrangements.
  • Court: Court should be a last resort but in some circumstances an application to the court for a decision about who a child lives with and how and when the other parent will have contact with the child is required. The court also has the power to make a “Specific Issue Order” which relates to a specific disagreement eg. which school a child should attend. Parents can still achieve agreement even after court proceedings have started. At the first informal hearing known as the Conciliation Appointment, an independent Child and Family Reporter (CAFCASS officer) will be present and can help the parents and court to identify common ground and reach agreement if possible.

A child’s welfare is the overriding factor in any decision the court makes in relation to a child (Children Act 1989). The court will apply a welfare checklist which considers:

  • The child’s wishes and feelings according to his or her age and understanding
  • Their physical, emotional and educational needs
  • The likely effect on the child of any change in his or her circumstances
  • Their age, sex, background and any characteristics which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each parent is of meeting the child’s needs.

A child arrangement order is granted by the court and can provide instruction on who a child or children live with or on how and when a person is to have contact with the child(ren), depending on the circumstances of the family in question.

A specific issues order is granted by the court in relation to a specific decision about a child or children where the parents (with parental responsibility) cannot agree. This can include where a child lives, what school they go to or whether a child can go on holiday with one of the parents.

In family law, the rights of the child are the main focus rather than the rights of a parent. Generally, a mother will always have parental responsibility for her child and these days fathers will almost certainly have parental responsibility as well (assuming they were named on the child’s birth certificate and/or that they were married to the child’s mother). Our Barrister, Karol Kaliczak, talks about this issue more in a video which can be found here

It is possible for a child to live with both parents if this is in the best interests of the child. The parents can agree this between themselves but if there is disagreement as to who cares for the child full time, the court can make a Child Arrangements Order that specifies what the arrangement is to be. This will usually specify that the child will live with one or both parents on a shared basis. This does not necessarily mean the child’s time will be split equally between the parents and ultimately the court will decide what is best for the child.

The court usually considers that it is a child’s best interests to have regular contact with both parents. There is no guarantee of this, however, and there may be rare cases where one parent poses such a risk to a child that the court deems ‘no contact’ to be appropriate – but these would tend to be the most extreme and unusual cases. If there is disagreement about the amount and times of contact with a child, an application can be made to court for a Child Arrangements Order (as per paragraph 7 above). The level of contact/shared care will depend on the individual circumstances of the family. If a Child Arrangements Order has already been made and isn’t been complied with, it may be necessary for further applications to the court to be made. In extreme situations where there have been persistent breaches, the court could order the transfer of the child’s residence from the non-compliant parent to the other parent but as always the court will be driven by what is best for the child rather than by what is ‘fair’ from the point of view of the parents. If you have concerns about arrangements for your children, please contact Karol Kaliczak who has specialist expertise in relation to this. For further information, please click here

Providing there are no child safety concerns, CAFCASS Officers and the Court generally consider it is in a child’s best interests to develop good relationships with both parents and their new partners. If the children are very young and the relationship is at a new stage, the Court will usually consider it appropriate to gradually introduce the children once the relationship is more established.

Unfortunately, grandparents do not automatically have any right to see their grandchild. It is possible however, to apply to the Court for permission to apply for a Child Arrangements Order which is likely to be given. The court would then be assessing the application in much the same way as it would with an application made by a parent i.e. would contact with the grandparent be in the child’s best interests.

If you do not agree that your child should relocate abroad, your ex-partner should seek the court’s permission by way of a specific issue/“leave to remove” application. As with all applications to the court regarding children, consideration will be given to what is in the child’s best interests.

A parent with Parental Responsibility is generally allowed to take the child abroad for holidays of up to 28 days without the consent of the other parent or a court order. If however, a parent permanently removes the child from the country without the other parent’s consent or a court order, they may be committing a criminal offence and proceedings can be brought for the return of the child.

If you are worried that your ex-partner may be planning to take your child to live abroad against your wishes, an emergency Prohibited Steps Order can be applied for at court which will prevent your child from being taken abroad. It is imperative in those circumstances to act swiftly as matters are, of course, always going to be more difficult once a child is already out of the country. On the other hand, a court application on the back of a vague concern might not be sensible and could worse relations between parents.

A parent who has Parent Responsibility for the child is entitled to be consulted about important issues such as choice of school, consent to medical treatment or religious upbringing. If disagreement arises over a certain issue, an application can be made to court for a Specific Issue Order. The court will always make its decision based on what is in the child’s best interests.

Child maintenance is usually agreed informally between parents and this is to be encouraged. In the event of disagreement then the issue will need to be dealt with by the Child Maintenance Service who work out how much is to be paid by the “Non-Resident Parent” to the “Parent with Care” for the child. Further detail can be found on the government website here. https://www.gov.uk/manage-child-maintenance-case. The court is generally not involved in child maintenance issues. In very limited circumstances, however, an application to the court can be made either during divorce as part of financial remedy proceedings or under Schedule 1 of the Children Act 1989 when certain circumstances apply, including:

  • If the Child Maintenance Service’s maintenance calculation demonstrates that the paying parent’s gross income exceeds £156,000 a year from all sources, the court can make a top-up order.
  • If a child has expenses because of a disability, the court can make a top-up order. This is on a case-by-case basis and will consider expenses such as the costs of a carer or costs of an adapted home.
  • If a child is currently being privately educated or there was an agreement that the child would be privately educated, the court can make an order in relation to the costs of school fees. This is determined on a case-by-case basis and may also include boarding school fees and additional expenses in connection with the child’s education.
  • Where one of the parties lives outside of the UK, the court may make an order.

There is no presumption that the children should live with their mother and the law does not favour mothers over fathers. Any decision the court takes in relation to children and where they live will always be based on what is in the best interests and welfare of the child.

Advice in relation to parental responsibility and how this can be acquired or lost can be seen in our short video by Karol Kaliczak, our family Barrister. https://youtu.be/XoFni8ilTH0

If this is a regular occurrence, we can negotiate on your behalf and if necessary, make the appropriate application to the court. If you have concerns about arrangements for your children, please contact Karol Kaliczak who has specialist expertise in relation to this. For further information, please click here. https://www.qualitysolicitors.com/moore-tibbits/services/family-law/child-arrangements-proceedings

If both parties cannot come to a resolution regarding child arrangements independently or with the assistance of mediation or solicitors, they will need to apply to court for a child arrangement order.

  1. First Hearing Dispute Resolution Appointment (FHDRA): The court will seek to find out what the issues are and why both parties cannot agree, a CAFCASS officer may also be involved to serve the best interest of the child(ren) and if a resolution can be found a final order may be made at this hearing.
  2. Dispute Resolution Appointment Hearing (DRA): If no agreement is reached in the above, a further DRA will be arranged to consider all statements and reports that have been filed, allowing the judge to assist in helping both parents recognise the issues involved and how to proceed.
  3. Fact Finding Hearing: This will only take place if serious allegations have been made against either or both parents and will seek to consider all evidence in reaching a decision. It is strongly recommended that your seek legal representation if your have been asked to attend a fact finding hearing.
  4. Final Hearing: The court will consider all evidence in making a final decision and will likely put a child arrangement order in place.

A child arrangement order will last until the child, or children, in question turns 16, unless it is ended by a court.


Expert legal advice you can rely on,
get in touch today


Please let us know you are not a robot