Divorce FAQs

If you and your spouse are able to reach an agreement about your finances and any arrangements for your children, you will have reduced the need for legal involvement. You may need the services of a solicitor to help put what you have agreed into a formal agreement to make sure you are both protected. A consent order like this can be agreed between you and sent to the court for approval.

You will need the court to handle the official divorce — bringing the marriage to an end — though if this is not disputed there should be no need to actually attend the court and costs can be kept to a minimum.

The courts’ primary concern is for the welfare of the child, and they will examine the ability of both parents to care for any children. They will look at the practical proposals of both parents, who was the main care provider during the marriage and whether it is better for the children for this to continue or not. The wishes and feelings of the children will also be considered, with more weight being given to the wishes of older children.

Both parents are responsible for the financial costs of raising a child. If your children do not live with you, then you will be responsible for paying an amount of child maintenance to the parent who is the full-time carer. How much child maintenance you pay will be calculated on the basis of your income and the number of qualifying children, or can be agreed between the two of you.

Of course, the term ‘unreasonable behaviour’ can be a subjective one, and it’s a term that is perhaps necessarily vague given the unlimited variations in people’s personal lives.  However this allows the people in the relationship to define what unreasonable behaviour is in relation to their own circumstances.

Other examples of unreasonable behaviour can include; physical violence or threat of physical violence, emotional abuse (such as calling someone abusive names), financial abuse (such as withholding money from a partner to restrict their activities), participating in activities that negatively influences their behaviour (such as gambling, alcohol or drugs), behaving in a manner that undermines your confidence (such as flirting to an unreasonable degree), unsociable behaviour (such as long periods of silence), unselfish behaviour (such as expecting all meals to be cooked and all housework to be done by the other party), antisocial behaviour (such as calling someone’s family abusive names), and selfish behaviour (such as leaving the marital home overnight without making a reasonable attempt to explain where they are).

There is no need for the divorce petition to include lengthy details. It is important to keep things as amicable as possible and often people can agree the content of the petition before it is issued. If your spouse is contesting the divorce, then the issue of unreasonable behaviour will be examined more closely.

Unreasonable behaviour doesn’t need to be deliberate, so even if your partner is behaving unreasonably without intent, their behaviour can still be deemed relevant in divorce proceedings.

Bear in mind that timing may be an issue. Your case may be stronger if divorce proceedings start within six months of the last incident of unreasonable behaviour.

 

When you are divorcing, all assets are identified and valued in order to see what is to be divided, and that includes any property.

As soon as you recognise that the marriage has broken down, you can take steps to protect your interest in the property by registering a notice of home rights with the Land Registry. This means that your spouse cannot sell the property without your knowledge or consent, until the divorce is finalised.

Even if the property is not in your name, it remains the marital home and you have the right of occupation for as long as you are married. Equally, you could expect to receive a share of the proceeds if the house is sold. This may not be a 50:50 split, but it could be enough to help towards the costs of another home after your divorce.

The best way of minimising the costs of divorce is for you and your spouse to keep talking and agree as much as possible between yourselves. Although you may still need to use a solicitor to draw up an agreement that reflects your wishes, this will be more cost-effective than using a mediator or negotiating entirely through your lawyers. You should take legal advice before finalising any agreement.

Matters can be more complicated if there are children involved, but you can still work out many of the practical details yourself. You and your spouse can agree on maintenance payments and arrangements for you both to spend time with your children.

If some areas of disagreement remain, you may wish to consider using a mediator to resolve any specific issues. Although there will be a fee for this service, the cost would be less than going to court. It can also be emotionally better for you to reach an agreement, rather than having a court tell you what is going to happen.

Remember that the timing of your divorce can have an impact in terms of personal and capital gains tax, and you may wish to take financial advice on the best time to transfer any assets, or to sell any property or shares.

If you have any children, their needs will be paramount in determining what happens to the family home and what child maintenance payments you have to make.

In some cases, you may need to allow your spouse and children to remain in the home until the children are 18 or have finished full-time education, with you retaining a financial interest in the property. You may also need to pay alimony (also known as spousal maintenance) as well as child maintenance payments.

How much you pay will depend on a whole range of factors, including:

  • What your spouse’s needs are and how much money they can earn.
  • What your spouse contributed to the marriage — for example, by bringing up the children.
  • Whether your wealth was earned during the marriage or before you were married.
  • What your standard of living was during the marriage.
  • How long you have been married and how old each of you are.

If there are no children, you may be able to agree a clean-break settlement with your spouse. This can involve making a one-off payment that ends all future financial claims between you and your spouse, rather than having any ongoing alimony or maintenance payments. 

The early stages of a divorce can be a challenging time, but it is important that you protect your home by continuing to make the necessary payments relating to it.

You should continue to make mortgage or rent payments (or discuss alternative arrangements with your mortgage provider or landlord) as well as any insurance premiums and household bills.

All of your contributions will be taken into account in any final settlement agreed by your lawyers or decided by the courts. By behaving reasonably during the divorce, you can also help avoid creating an unnecessarily hostile relationship with your spouse.

Your personal circumstances will affect whether a lump sum payment, often as part of a clean-break agreement, or regular alimony payments (also known as spousal maintenance) is the right option for you.

In a clean-break agreement, a financial settlement is reached between you and your spouse, which can include the payment of a lump sum. All future financial claims are cancelled and you are able to draw a clear line under the divorce.

A clean break can be the best option, as it gives each of you certainty and allows you to get on with your lives. If you are receiving maintenance, there is a risk that the payment could fall in the future: for example, if your spouse becomes unemployed.  Conversely, if you think your spouse’s financial circumstances are likely to improve, you may not wish to agree a final settlement based on current earnings.

A complete clean break may not be possible if there are children involved, as there may need to be ongoing financial support while they are growing up. Child maintenance cannot be covered by a clean break agreement as it is maintenance for the children rather than for you.

If the mortgage is only in your husband’s name, then he is liable for making payments. If it is a joint mortgage, then both you and your husband are ‘jointly and severally’ liable, meaning that you are both responsible for any payments.

If your husband is refusing to provide any financial help, you should take legal advice. Once you have started divorce proceedings, you may be able to apply to the court for interim maintenance. If the court decides in your favour, your husband will be legally required to pay the amount the court decides.

If you have children, you can also ask the Child Maintenance Service to work out how much child maintenance you are entitled to and collect it for you. At the same time, you should make sure that you are receiving all the state benefits to which you are entitled.

For child maintenance, there are fixed ways in which the amounts are calculated. The Child Maintenance Service can work out how much you should receive and can even collect the payments on your behalf. You can also use the Child Maintenance Service to calculate what the payments should be, and you and your spouse can then agree a child maintenance schedule without involving the courts.

In terms of alimony, or spousal maintenance, there is no fixed formula for calculating payments and there are a number of ways in which it can be finalised.

It is best if you can agree such payments between yourselves and without the need to go to court — any decision can then be written into your divorce agreement. Alternatively, you can use mediation to try and resolve any particular issues; this will be faster and less costly than taking matters to court.

If these options fail, you can apply through the courts for a spousal maintenance order. The courts will look at the existing salaries and earning potential of you and your spouse, and balance these against your needs and commitments. If an order is granted, it could be as a lump sum or the payment of maintenance for a fixed time period.

You may also be entitled to a reduction in Council Tax as the sole adult occupant, and perhaps a further reduction if you’re on a low income.  Contact your local council for more details.  If you don’t know how to do this then the Citizens Advice Bureau have a good web page explaining everything; including who qualifies for a Council Tax Reduction.  This page has links to other pages with more relevant information if you live in Wales, Scotland or Northern Ireland.

You may be able to secure some form of maintenance payment from your spouse. If this cannot be agreed between you, you can make an application for maintenance pending suit at the same time as you file for divorce. This is a form of interim maintenance payment until any final maintenance arrangements are confirmed.  However, there may be additional costs associated with filing such an application. You should discuss all options with your legal adviser before making any final decision.

If you feel like you’ve been deserted then this will be an extremely challenging time for you, so it’s not always possible to even consider getting a part-time job to help cover the bills.  If you can, make an appointment with your local JobCentre, or visit this Gov.UK webpage which has details of how to contact your local JobCentre.

However if your income has suddenly significantly dropped after your spouse has walked out (whether you’re working or not) you’re probably worrying about not being able to repay unsecured debts.  Speaking to a free debt management charity such as StepChange can help to clarify what your next steps regarding repayment of your debts should be.  The last thing you want is for angry creditors to start harassing you with threatening phone calls, so contacting them with the help of a debt management company can often help them to understand you’ve had a change in circumstances that is making finances difficult.

Child maintenance is a completely separate issue to any contact arrangements. The courts would not allow access to be used as a bargaining tool in relation to child maintenance payments.

Organisations such as the Children and Family Court Advisory Support Service (Cafcass) or National Family Mediation may be able to help you in resolving issues around access.

 

If you cannot agree on how best to provide a home for your children, and the case goes to court, the priority will always be the welfare of the children.

Where a family home is the main asset, you (as the primary carer) and the children would usually be allowed to remain in the house until the children have finished their education.

However, where finances simply do not allow for the cost of maintaining the family home, you may have to be realistic about moving into a smaller house. This could be a positive new start: for example, a smaller house will cost less to run.

This can be a contentious area, and it is one where you should seek legal advice before making any major decisions. Mediation should be considered early on if you need help resolving financial issues. You must attend a mediation session before making a formal court application.

While it may seem unfair, whose fault it is usually makes no difference. You should resist the temptation to use the divorce to get back at your spouse. In terms of any financial arrangements, the usual methods used by the courts to value any assets will still apply, regardless of the grounds for the divorce.

The basic fees are:

  • Court fees — £410 — when you start the divorce proceedings.
  • Court fee for issuing financial proceedings — £255 — if you cannot agree financial arrangements between yourselves.

You will also have to pay your solicitor’s fees. The fees vary depending on the complexity of the case but can be as low as £150—£200 if there are no disputes over money or children. For more information about what we can offer, and the costs involved, you should make a free initial enquiry.

Since April 2013, legal aid has been withdrawn for most divorce cases in England and Wales, although it is sometimes available to help with the costs of mediation.  You may qualify for legal aid if you have suffered from domestic violence or abuse. You may also be entitled to a reduction in court fees if you are on benefits or have a low income.

Most people can agree arrangements for the children between themselves and court action should be a last resort. If your divorce is amicable, you and your spouse will be able to agree a schedule that suits everyone and, most importantly, ensures that your children are able to spend time with both parents.

Depending on your circumstances, this could include overnight stays during the week and at weekends and longer stays during school holidays. There is no set rule regarding the frequency of contact — every family is different and often children have activities themselves. It is important to remember that children like to have regular routines and to know when they are seeing each parent.

You can apply for a child arrangement order which sets out the time the children will spend with you. The court’s priority will always be the welfare of the child. You may have more flexibility in how arrangements are structured if they can be agreed with your spouse ahead of any court proceedings.

If you do want to make a court application you will first need to see whether arrangements can be agreed with the help of a trained mediator. But there is no need to wait this long: mediation can be tried at any time. Mediation at an early stage can save a lot of time and heartache, helping to resolve or at least narrow the issues in dispute. 

Child maintenance is the financial support provided by one parent to another to cover the living expenses of any children.

It is awarded for children under 16, those under 20 who are in full-time education (but not higher than A Levels), and those under 20 where the parent receives child benefit.

You can agree maintenance payments between yourselves or apply to the Child Maintenance Service. This is a statutory service that can calculate the amount you should be paid and can arrange to collect the payments on your behalf. Sliding scales are used to work out how much money has to be earned before child maintenance must be paid and the amount to be paid for each child. 

The Child Maintenance Service takes into account the paying parent’s income and whether they are supporting other children. For example, if your former spouse earns £20,000 a year and this is the only child they support, you might receive around £50 a week. Someone earning £40,000 a year and paying child support for two children might pay you a total of around £130 a week.

The level of maintenance payment may be reduced if the child is spending time with each parent on a regular basis.

You may be able to agree higher payments if you negotiate them between yourselves with the support of a lawyer. This can be particularly helpful if your former spouse is a high-earner, or you want help with additional costs such as private school fees.

Assuming that you have been married for at least a year, there are five grounds for divorce:

  • Adultery.
  • Unreasonable behaviour.
  • Desertion.
  • Two years’ separation (where both parties consent).
  • Five years’ separation (the divorce can proceed without your spouse’s consent).

Of these, adultery is often the hardest to prove. If your spouse will not admit to the adultery, and you do not have the firm evidence to prove it, it may be easier to file for divorce on the grounds of unreasonable behaviour. 

If you and your spouse have been unable to reach an agreement, then you should consider using the services of a mediator.  Since April 2014, you need to show that you have considered mediation and attended a Mediation Information and Assessment Meeting (MIAM) before you can make a court application regarding your children or any finances.

A MIAM is for you to learn more about mediation and to see if there are ways of resolving your differences without going to court. The advantages of mediation will be explained, as well as its likely costs. Having heard a little about your circumstances, the mediator will be able to advise you on your next steps.

Once you have found a suitable service, the mediation process can be much swifter than a court case, with significantly lower costs. Mediators will work with you to explore all of your options and to address any particular needs. Mediation can include a specific assessment of child maintenance payments.

There may be instances where mediation is unsuitable or will not work, but it should always be considered before taking your case to court. 

Where maintenance payments are made, day-to-day decisions about how that money is best used is the responsibility of the parent who receives the payments.

However, if you have agreed a financial arrangement with your spouse, this can include payments for specific items that you would like your children to have — for example, school trips, laptops, etc.

Regardless of any maintenance payments you make, your ‘parental responsibility’ for the child does not end when you divorce. This gives you the right to be involved in important decisions, such as where the child goes to school or in the event of serious medical treatment.

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