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Here you will find the answers to many of the most common Divorce and Family Law questions
You cannot issue a divorce or dissolution application until you have been married or in a civil partnership for more than one year. However, this does not stop you from separating and trying to agree arrangements in relation to finances and the children in the meantime.
You do not need a solicitor to get a divorce or dissolution, and can instead do it yourself, but we would strongly advise you against this course of action. It really is the best course of action to seek legal advice, particularly if the divorce or dissolution involves international issues and/or significant sums of money. It is also worth bearing in mind that a solicitor cannot act for both parties to the divorce or dissolution, save when it is a joint application. Therefore, you should each obtain your own independent legal advice.
No. It does not matter where you were married or entered into your civil partnership. However, it does matter where you and/or your spouse or civil partner are living at the time the application is issued. To decide which country is most appropriate, you will need to consider in which country you are domiciled and/or habitually resident. This will determine whether the court is able to deal with it i.e., whether the court has jurisdiction. Domicile and habitual residence can be complex issues which may need to be explored if you or your spouse or civil partner have connections abroad. This is something you should seek expert legal advice on before issuing a divorce or dissolution application as it may have significant implications, in relation to the divorce or dissolution, financial, and possibly the child arrangements.
Yes. If issuing by post, your divorce or dissolution application needs to be accompanied by either your original or an official certified copy of your marriage or civil partnership certificate. A photocopy is not sufficient. If you were married or entered into a civil partnership in England or Wales, you can easily obtain an official certified copy of your marriage or civil partnership certificate from the office of the Registrar of Births, Deaths and Marriages or Civil Partnerships for the district in which you were married or entered into a civil partnership. The court does not return your marriage or civil partnership certificate after the divorce or dissolution.
If issuing online then you are required to submit a scanned copy or photograph, showing all four corners of the document, and to certify that this is an original or official certified copy.
Different formalities apply if you were married or entered into a civil partnership abroad. You will need to make enquires with the relevant authority and may require a translation of your marriage or civil partnership certificate.
The only ground for a divorce or dissolution is that the relationship has irretrievably broken down. With effect from 6 April 2022, you no longer have to prove one of five facts (adultery (marriage only), unreasonable behaviour, desertion, two years separation with consent or five years separation without consent). Instead, this has been replaced by a simple statement that the relationship has irretrievably broken down. This is known as no-fault divorce.
No. It does not make any difference who issues the proceedings. This is not something the court considers when determining matters relating to the children and/or financial arrangements. With effect from 6 April 2022, there is no longer a fault-based system. Divorce or dissolution proceedings can be issued either by a sole application or a joint application.
Not usually. The divorce or dissolution application process is now completed online via the digital service or by paper via the post. You will not be required to attend court unless the application is disputed, which is rare and only possible in limited circumstances. However, you may have to attend separate proceedings in court if you and your partner are unable to agree arrangements for your children or for financial provision.
Negotiations in relation to the financial arrangements on separation, divorce or dissolution can take place at any time before, during or after the divorce or dissolution. It is not usually necessary for negotiations to have been completed before the divorce or dissolution has been made final, although it is sometimes advisable not to finalise the divorce or dissolution until financial arrangements have been agreed and recorded in a Consent Order. Particular financial issues, such as maintenance, may need to be resolved in advance of an overall settlement being reached, and this may require a separate hearing if necessary. However, a court cannot grant an order dealing with the finances in a marriage breakdown until a conditional order of divorce is obtained.
Neither party to the marriage or civil partnership is free to remarry or enter into another civil partnership until the final order has been made in the divorce or dissolution proceedings.
With effect from 6 April 2022 there is now a new minimum overall timeframe of six months (26 weeks). This is made up of:
This is intended to ensure a period of reflection and, where a divorce or dissolution is inevitable, to give greater opportunity for reaching an agreement regarding child arrangements and financial arrangements.
Where a divorce or dissolution is undisputed, it will usually take an average of six to eight months from issuing the application to the making of the final order, depending on how quickly each order is applied for and any Court backlog in dealing with the applications.
In a sole application, if the acknowledgement of service is served later than 18 weeks from the date of issue, then the applicant cannot apply for the conditional order until at least 14 days after service.
Yes, but you do not have to. As of 6 April 2022, the divorce or dissolution application can either be issued by a sole applicant or jointly.
The person applying is known as the applicant, or sole applicant. The other party is known as the respondent.
If a sole applicant is legally represented, they must use the digital service. If a sole applicant is applying themselves as a litigant in person, they can use the digital service or the paper process.
A respondent can no longer defend a divorce or dissolution on the basis that the marriage or civil partnership has not irretrievably broken down. A respondent can only dispute the application based on jurisdiction, validity of the marriage or civil partnership, if the marriage or civil partnership has already legally ended in a different country, or for reasons of fraud or procedural compliance.
A sole application cannot later become a joint application. A decision needs to be made at the outset whether to issue on a sole or joint basis.
The parties will be known as Applicant 1 and Applicant 2, enabling them to apply jointly.
Joint applications can be made digitally or on paper. Each applicant can have their own separate legal representation. However, if one solicitor is instructed jointly by both applicants then the application must be made on paper.
Joint applicants may not be appropriate in certain circumstances, for example where there has been domestic violence.
If an application can no longer progress jointly because the relationship has deteriorated further and/or one party is not cooperating, then one applicant can apply to switch the application from joint to sole, at the stage of applying for the conditional order or the final order, provided the appropriate notice is given.
The divorce or dissolution process begins when the applicant issues the divorce or dissolution application, and the relevant court fee is paid.
There are two ways in which the divorce or dissolution proceedings can take place: the online process via the digital service or the paper process via the post.
It is recommended to use the digital service where possible, and this is mandatory for those instructing a solicitor (unless instructing one solicitor jointly).
If it is a sole application then the application will be sent to the respondent, i.e. served, and must be served within 28 days of issue. The application will usually be served by the court. Service will take place by email if an email address is given. When serving by email this will be accompanied by a postal notification confirming email service. The respondent’s usual personal email should be used. Business emails should be avoided. If the applicant does not have a valid postal and email address for the respondent, or if the respondent lives abroad, then different rules apply. If the applicant is to serve the respondent, instead of the court, the applicant must confirm to the court that service has taken place within 28 days of issue. It is important to get legal advice and assistance to ensure effective service takes place.
The respondent must then complete and submit a response, known as an acknowledgement of service. This confirms that they have received the application and indicates whether they agree with or dispute the proceedings.
Once the acknowledgement of service is submitted (provided the respondent is not disputing the divorce or dissolution), and the minimum 20-week period has passed, the applicant can apply for the conditional order which acknowledges the entitlement to a divorce or dissolution.
Once the six-week period has passed from the conditional order the applicant can apply for the final order, provided 14 days-notice is given to the respondent. As before, if the applicant has not applied for the final order within a further three-months then the respondent can do so, on notice.
If it is a joint application, then the application does not need to be served but both parties will receive a copy of the application on issue and can apply jointly for the conditional order and final order once the wait periods have passed.
The wait periods may only be expedited in exceptional circumstances, for example terminal illness or imminent birth of a children, by way of an urgent application on paper only. The application will need to be supported by evidence and should be prepared by a solicitor where possible.
In a sole application, the applicant will pay the costs of the application. It will then be open to the parties to agree how those costs should be paid, as part of the discussion on financial arrangements or separately. If an agreement cannot be reached, then a separate application will need to be made for a costs order.
In a joint application the parties can decide who will pay the costs of the application. If applying by paper, then either party can insert their details for payment. If applying online then applicant 1 will need to pay the fee and agree with applicant 2 how the costs should ultimately be paid, as part of the discussion on financial arrangements or separately.
If the applicant(s) are eligible they can apply for Help with Fees via the government website. This is not available on joint applications where only one of the applicants are eligible.
A respondent can no longer defend a divorce or dissolution by asserting that the marriage or civil partnership has not irretrievably broken down. A respondent can only dispute the proceedings based on jurisdiction, validity of the marriage or civil partnership, if the marriage or civil partnership has already legally ended in a different country, or for reasons of fraud or procedural compliance. A respondent who wishes to do so must submit an answer within 21 days of the date the acknowledgement of service is required to be filed (longer time limits apply where the respondent lives outside England and Wales) and pay the relevant court fee. The application then becomes defended and moves to a paper process. Attendance at court may be required if it is necessary to apply for the court to list a hearing for directions, and thereafter a fully contested hearing. However, it is often still possible to reach a compromise, even when an answer has been lodged and disputed divorce or dissolution proceedings rarely result in a fully contested hearing. It will, however, inevitably take longer to finalise the divorce or dissolution proceedings and the costs will increase. It is very important for a respondent to seek independent legal advice before deciding to dispute the proceedings.
The applicant will need to prove that the respondent has received the divorce or dissolution application and is choosing to ignore them, and that the requisite 20 week wait period has passed since issuing proceedings. A duplicate set of the papers may need to be sent to the respondent by recorded delivery or arranging for someone to deliver the papers to the respondent personally. In exceptional circumstances, where every attempt has been made to ensure that the respondent has received the divorce papers, it may be necessary for the applicant to apply to the court to make an order dispensing with the need to effect service. This will increase the costs of the divorce. If this is necessary, it is advisable to seek leal advice at an early stage to avoid further unnecessary delay.
The applicant(s) can only apply for the final order once a period of weeks has passed since the conditional order was made. If it is a sole application, then 14 days’ notice must be given to the respondent. The respondent then has the opportunity to make an application to delay the grant of the final order on the grounds of hardship, as before. In the absence of any such application by the respondent, the application for the final order is usually processed within a few working days. It is important to discuss the timing and impact of the application for final order with a solicitor before it is made. The granting of the final order is what makes the divorce or dissolution final and ends the marriage or civil partnership, entitling the parties to remarry or enter into a new civil partnership. The applicant(s) can stop the proceedings at any time up until this point if they wish.
If the applicant does not apply for the final order, then the respondent can make the application, but will need to wait a further three months from the date on which the applicant could have first applied. The application is not granted automatically and usually requires attendance at court.
These FAQs are only an outline of the divorce and separation process. We advise anyone looking to divorce or separate to consult and expert family lawyer. Please get in touch with one of our highly experienced family law team members today on 03333 058375, or email family@psg-law.co.uk
Arrangements in relation to where a child will live, when they will spend time with each parent and additional contact should ideally be discussed and agreed upon between both parents. It is in the interest of all parties if these arrangements can be agreed upon without going to Court.
In instances where it is not possible to agree child arrangements, either parent can apply to the Courts for a Child Arrangements Order. – This will mean that a court will decide on the arrangements for the child. In making a decision regarding child arrangements, the court will take into consideration:
A Child Arrangements Order is a legally binding court order implemented by the Family Courts to outline who a child(ren) lives with, or when a child spends time with each parent and arrangements regarding the time spent with each parent.
Once established, the arrangements in relation to contact as set out in a Child Arrangements Order remain in place until the child reaches the age of 16, unless the Order outlines otherwise, or the parties agree a variation of the order between themselves.
Details regarding where the child will live however remain legally binding until the child reaches the age of 18.
As circumstances change and children get older, it is possible that the arrangements as originally set out in a Child Arrangements Order will become unsuitable for those involved. It is therefore possible to apply for a variation of the order, or for a variation to be agreed between parents. If an agreed variation cannot be reached one parent should make an application to court and thereafter outline the proposed changes and the reasons why these changes would be in the best interests of the child(ren).
Yes, child arrangements can be agreed through Mediation. Mediation can in fact be a more positive manner in which to discuss and agree upon child arrangements, supporting a more communicative and long term relationship between both parties.
And bear in mind a Child Arrangements Order can be agreed between collaborative solicitors.
The Child Maintenance and Enforcement Commission (CMEC) – a statutory non-departmental public body – was established in 2008 to take on the work of the Child Support Agency. At the same time, the Child Maintenance and Other Payments Act 2008 (CMOPA) removed the obligation for new claimants who are on benefits to use the CSA.
In October 2008, the obligation for existing CSA clients claiming benefits to continue to use the Agency was removed. All parents can now choose the child maintenance arrangements that best suit their individual circumstances. This could be a private arrangement or the statutory maintenance arrangements. A new Child Maintenance Options Service has been established to provide information and support to help parents reach a decision.
Since April 2010, all child maintenance has been fully disregarded when calculating out-of-work benefits.
In November 2008, the CMEC took over responsibility for the work of the CSA. In 2012, this was closed and the responsibility was transferred to the Department of Work and Pensions (DWP). During 2009/2010, new enforcement powers were introduced under the CMOPA to ensure that parents meet their child maintenance responsibilities. These include allowing the CMEC to seize the passport and/or driving licence of parents who fail to pay.
In late 2012, a new child maintenance scheme was introduced, claimed to be fairer and faster than the current system. It includes annual reviews of maintenance assessment, an increase in the ‘flat rate’ child maintenance deduction from state benefits and the removal of the necessity for parents who share child care equally to pay maintenance through the statutory scheme. Couples wishing to make their own agreement can use the ‘family-based arrangement form’ available from the Child Maintenance Options website.
The new system bases the maintenance payable on a flat rate per child with the rate varying depending on:
For more information see the see the CSA website [hyperlink https://www.gov.uk/child-maintenance-service] which includes a child maintenance calculator.
Option 1: Pension Sharing Order
In this option, an agreed percentage of one spouse’s pension funds are transferred into a pension fund in the other spouse’s name. This option has the advantage of enabling a clean break between the couple and enables both parties to build up their pension funds independently after the original pension sharing order has been finalised.
Option 2: Deferred Pension Sharing Order
If the pension is in payment already to the older spouse, a deferred order means that the pension is shared with the younger spouse when he/she reaches retirement age.
Option 3: Offsetting
With this option, the pension holder keeps their pension fund intact, which is offset by giving the other spouse a greater share of other assets such as cash savings or equity in a shared home. This has the advantage of enabling a clean break and giving liquid capital to one spouse. However, if the liquid capital is limited, it may mean the person with the pension will have very little liquid capital available after the divorce.
Option 4: Deferred Lump Sum Order
This leaves the pension fund intact for the time being, on the understanding that both parties will receive an agreed lump sum at the time of the pension holder’s retirement.
Option 5: Pension Attachment Order
A portion of the lump sum and/or pension income will be paid to the other spouse when the pension holder retires, based on the fund’s value at that time. While there are advantages and disadvantages for both parties in this option, it should be noted that this doesn’t achieve the clean break many people desire, and also removes quite a lot of certainty, particularly for the party who must wait for their former spouse to decide to take their pension.
A consent order is a legal document recording the financial division of assets or payment of maintenance following a divorce. A consent order is approved and sealed by the court and must be adhered to by both parties. Although rare, sometimes the situation arises where one party attempts to try and avoid the implementation of the terms of the financial order.
If an order has not been complied with, you should contact our expert Family Law team so that we can take immediate action on your behalf to ensure compliance of the financial order. Please note that time can be of the essence with such steps, so do not delay.
Where a party has ceased to make maintenance payments, the receiving party will be extremely anxious, as they may rely heavily on this maintenance as a source of income. In such circumstances, it may be possible to apply for an attachment of earnings order, that is, an order that money from a person’s wages is paid direct from that person’s employer to the person who is owed the money.
In other cases, it may be possible to seek an order putting a “freeze” on the non-payer’s assets so that he/she cannot operate financially until they comply with their obligations. It may be possible for interest to be claimed on any maintenance arrears and this is something that we will discuss with you at our first appointment. Please note that delay in pursuing the breach of a financial order, whether as a maintenance provision, could have a detrimental impact if immediate advice is not obtained.
While you are still married your spouse will have a claim to your estate. Any Will you have in place will be valid as will any life insurance (inc. death in service) or pension nominations. If you do not have a Will, then your spouse will be entitled to some or all of your estate under the rules of intestacy.
If you do not wish for your spouse to inherit more than the minimal amount possible, you should make changes to your Will and pension and life insurance nominations as soon as possible. Find out more about estate planning during and after a divorce here.
A Cohabitation Agreement does not hold any influence over the intestacy rules which take effect when a person dies without making a will. If one of the partners involved in the Cohabitation Agreement passed away without leaving a will, the cohabiting partner would not be classed as next of kin and would be unlikely to inherit. Therefore, cohabiting couples should also make a will in line with their personal wishes.
Yes. Within every relationship, changes can happen, whether it is the birth of children, the purchase of a property / asset or other significant change in circumstances. Such changes can and should be incorporated into a Cohabitation Agreement.
It is advised that following any significant life events or every three to four years, a Cohabitation Agreement is reviewed and updated as deemed necessary. It is only by updating this in line with your circumstances that the agreement will remain fit for purpose.
A Cohabitation Agreement is only effective until a marriage or civil partnership is entered into. Therefore, if a couple set out a Cohabitation Agreement when initially purchasing a property and then later got married, this would only remain effective until the date of marriage. If you still wish to regulate matters, consider having a pre-nuptial agreement.
Yes. Prior to the finance being provided, the financial assistance being provided should be legally documented, outlining whether this is a loan or gift, repayment terms where applicable and any specific terms and conditions.
Clauses can be included within the Cohabitation Agreement that specify that in the event of a breakdown of the relationship, the finance provided is returned to them from the proceeds of sale, prior to these being distributed between the couple.
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