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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 ‘petitioner’, (official term is now the ‘applicant’) files a divorce petition with the court. From Autumn 2021 divorce law will change and there will be a ‘no fault’ basis to encourage amicable proceedings and make the divorce process much simpler and easier.

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 decree nisi.

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 petition (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.

You will need:

  • The original or a certified copy (available from the Registry Office) of your marriage certificate
  • The court fee which is currently £550.00 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 papers.

The petitioner files a Divorce Petition at Court and the relevant court fee is paid.

The Petition and any accompanying documents will then be served on the Respondent, often by first class post.

The respondent is then required to complete and return the Acknowledgment of Service document 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 will sign a statement of truth stating that all the details on the documents are true and a Judge will then consider the facts showing that the marriage has broken down irretrievably.

Providing you have proven sufficiently that your marriage has completely broken down, the Judge will set a date when a ‘decree nisi’ will be granted. (The decree nisi acknowledges that the petitioner is entitled to a divorce). It is not necessary to attend court for the statement of the decree nisi.

Six weeks after that, the petitioner can apply for the decree nisi to be made absolute and once this has been granted, you are divorced and free to remarry if you wish to do so. .

For further information, please see our factsheet

No, it doesn’t make any difference. Usually, if only one spouse wants to divorce, they will be the one who files the Divorce Petition. The petitioner will need to pay the court fee which is currently £550.00 but you can ask the court to order that the respondent pays back all or some of the costs incurred as the petitioner.

The court must be satisfied that the marriage has “irretrievably broken down”. This must be supported by one of five reasons:

  • Adultery
  • Unreasonable behaviour
  • Desertion for a period of more than 2 years
  • You have been separated for a period of 2 years and your spouse agrees to the divorce
  • You have been separated for a period of more than 5 years. No consent from the other party is required.

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 unreasonable behaviour or adultery at any time. Petitions for two or five year separation divorces, require you to be separated for either a full two or five years.

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. If however, a spouse has been guilty of serious unreasonable behaviour such as violence or financial recklessness, this may in extreme cases affect the outcome.

A Decree Nisi is an order of the court acknowledging that the petitioner is entitled to a divorce.

There is no set period in which Decree Nisi will be issued by the court as it depends on the complexity of the divorce and those involved but approximately 6-8 weeks is a good guide in a fairly straightforward divorce.

Six weeks and a day after the date of decree nisi the petitioner can apply for decree absolute. It is not necessary to attend court for the announcement of the decree nisi.

The Decree Absolute is a court order that officially ends a marriage. This will not be issued until at least 6 weeks and one day after the date of the Decree Nisi. Once the Decree Absolute has been issued you are free to remarry.

This can depend on a number of factors. If your divorce suit is not contested, it usually takes an average of around 5-6 months for a divorce to be granted but this is dependent on any backlog the court has in dealing with applications. More commonly a divorce can take around 12 months depending upon the complexities involved in the case when you factor in negotiating and agreeing financial issues and child arrangements.

You can get a fixed fee divorce if it is uncontested. This means that your ex agrees with the divorce and doesn’t try to defend it. 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 petitioner. You will be responsible for paying the court fee which is £550 as well as your own lawyer’s fees. In some cases, you can also seek the cost of the divorce from the respondent. Please see below for details of our fixed cost packages.

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.

This can depend on the circumstances of your case. If you are issuing a petition based on adultery or unreasonable behaviour, it is possible to seek an Order for Costs against your spouse within the petition. This is in relation to the legal costs you have incurred issuing the Petition including the court fee and solicitors’ fees. It is open to the parties to agree whether to seek a Costs Order, share the costs or meeting them themselves.

An uncontested divorce is the term used when you agree with the divorce and don’t try to defend it. Uncontested divorce can also be known as undefended divorce.

Unreasonable behaviour is the most common of the facts used for demonstrating a marriage has irretrievably broken down and your spouse has behaved in such a way that you cannot reasonably be expected to live with them. This can include reasons such as violence, threats, verbal abuse, alcohol or drug related behaviour, gambling but also less dramatic reasons such as disrespectful or undermining behaviour, lack of a sex life, lack of emotional support or lack of interest in you.

No. While many believe that the unfaithful party will be treated more harshly in court this is simply not the case. Judges understand that marital breakdown is rarely the fault of just one party so they do not treat people more or less harshly if they have committed adultery. It will have no impact on how the matrimonial finances will be divided. It will also have no impact on decisions regarding any children you have.

If your partner has committed adultery, emotions may be running high but it is not a good idea to bring a third person into the divorce proceedings. This can bring unnecessary complication, expense and difficulties, increasing costs and potentially causing delays.

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.

Your spouse can defend a divorce by claiming that the facts relied on in the petition are not true eg. they did not commit adultery. If your petition is based on unreasonable behaviour or five years separation, you will still be able to proceed if you can prove to the court that the other party has received the divorce papers. This is normally done by way of personal service by a process server or court bailiff.

If your petition is based on adultery or two years separation, it may be difficult to proceed as your spouse will need to admit to the adultery or give consent to the two years separation in writing. You may therefore wish to amend your petition to unreasonable behaviour.

If your ex won’t agree to an uncontested divorce, your only option is to wait five years separation. If you choose this fact to support your divorce, your ex does not have to agree to it.

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.

  • On what basis you are planning to get divorced (eg. adultery, unreasonable behaviour etc.)
  • 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 Decree Absolute 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 Decree Absolute.

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 Decree Absolute, 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

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 Decree Absolute 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 Decree Absolute 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 decree absolute is issued. This is to protect all parties as in some circumstances, important entitlements such as pension rights can be lost once the decree absolute 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.


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