Frequently Asked Questions

June 2016

Divorce

How do I get Divorced?

You can get divorced if you have been married for at least a year, have a marriage that is legally recognised in the UK and have a permanent home in England and Wales. The three main steps to getting divorced are:

  • Filing a Divorce Petition – You have to apply to the Court for permission to Divorce. You have to show the Court the reasons your relationship has permanently broken down (i.e. adultery, unreasonable behaviour, 2 years’ separation) (please see our website for further information on the grounds for divorce);
  • Apply for Decree Nisi – The Court will consider the contents of your Petition and decide whether you are entitled to a Divorce;
  • Apply for Decree Absolute – this legally ends your marriage. You have to wait 6 weeks from Decree Nisi before you can apply for Decree Absolute.
How much will it cost?

The Court fee to issue a Divorce Petition is currently £550. You may be exempt from paying the Court fee if you are of low income or in receipt of benefits. When you send your Divorce Petition to the Court you can apply for exemption from paying the fee. The Court will assess your income. You will need to send the Court up to date evidence of your income, i.e wage slips or your benefit entitlement letter.

Please refer to our website for our fixed fees for representing clients in respect of their Divorce.

How long will it take?

The average straight forward divorce can take four to eight months, provided that both parties deal with the Court paperwork promptly.

We are already separated – can I use adultery?

Adultery does not have to be the cause of the breakdown of the marriage. If you are separated and one party has a sexual relationship with a member of the opposite sex, this is adultery and can be used as a reason for the breakdown of the marriage.

Does the cause of the breakdown of our relationship affect our financial settlement or the arrangements for the children?

Generally, no. Whatever the cause of the breakdown of your marriage, does not affect your ability as a parent or your financial needs.

Civil Partnership – We are separating – what can we do?

Dissolving a civil partnership is the same as obtaining a Divorce except that adultery relates to heterosexual couples only and so adultery cannot be cited as the reason for dissolving a civil partnership, although being unfaithful would instead be unreasonable behaviour.

Children

“Custody” and “Access”

The Children Act 1989 changed the arrangements relating to custody, care and control and access, as they used to be called, introducing new arrangements, namely Residence, Parental Responsibility and Contact.

The Children Act has now been changed by the Children and Families Act 2014 which introduces the new Child Arrangements Order. This is an Order determining where the child will live and with whom the child will have contact.

What happens if we cannot agree who our child/children should live with?

When it comes to arrangements for your children, reaching an agreement is best for all involved. The Court will only make a formal Child Arrangements Order if there is a dispute – otherwise no Order will be made. There is a presumption that the Court should not intervene unless it is in the best interests of the child. The Court’s paramount consideration is the welfare of the child.

The Court will also have regard to:

  • the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
  • the child’s physical, emotional and educational needs;
  • the likely effect on the child of any change in his/her circumstances;
  • the child’s age, sex, background, and any other characteristic which the court considers relevant;
  • any harm which the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  • the range of powers available to the court under the Children Act in the proceedings in question.
What is Parental Responsibility?

Parental Responsibility encompasses all the rights, duties and responsibilities a parent has towards their child. In simplistic language this means that any person with Parental Responsibility has a duty and responsibility to take part in the major decisions affecting their children’s life, such as naming the child and agreeing to any change of name, looking after the child’s property, agreeing to child’s medical treatment and choosing and providing for the child’s education. If you have Parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them – but the other parent still needs to keep you updated about their well-being and progress.

How do you get Parental Responsibility?

Parental responsibility is shared jointly between all married parents, even after divorce, so long as the child is under 18. Unmarried fathers can acquire parental responsibility either by agreement with the mother of the children or by Order of the Court, and now, if the father’s name is on the birth certificate of the children.

Finances

Do we need to deal with our matrimonial finances when we get divorced?

No, but it is sensible to do so. If you reach an agreement about the division of your assets, this can be approved by the Court as part of the Divorce Proceedings and made into a “Financial Order” to make the agreement binding. No agreement can be considered final, unless it is approved by the Court.
If you do not deal with the matrimonial finances, either of you could have potential claims against the other in the future, even after divorce, including claims against the other’s estate after you die.

The Court takes various matters into account, giving first consideration to the welfare of any children of the family under the age of 18. What is also relevant is the parties’ income and earning capacity, as well as the ages of the parties, the standard of living enjoyed by the family prior to marriage breakdown and any physical or mental disability of each spouse.

Unmarried Couples

I don’t own the house – am I entitled to anything?

Contrary to popular belief “common law” husband and wife status does not exist in law. Cohabiting couples do not have the same rights as married couples.There is very little protection for the weaker party and cohabiting couples find themselves in real difficulty when they separate. Despite the arrangements in place throughout the relationship, one party could end up with nothing. Cohabiting couples have no right to maintenance or a share of the assets, including property and inheritance.

Where cohabiting couples jointly own their home, it is automatically divided 50:50 (unless a deed of trust was entered into at the time of purchase clearly setting out each party’s share). If one wishes to challenge the presumption of the 50:50 split in Court it will be costly and there is no guarantee they would win. If your name is not on the title deeds, you do not own the property. The only protection available would be a Cohabitation Agreement to regulate the parties’ property rights and arrangements for mutual financial support.

What is a cohabitation agreement?

A Cohabitation Agreement regulates the parties’ property rights and arrangements for mutual financial support.

A Cohabitation Agreement would deal with the following:

  • Who owns what and in what proportion;
  • How assets will be divided on separation;
  • The division of home contents and personal belongings;
  • What to do with any savings;
  • How the children will be supported;
  • How to deal with joint debts/accounts;
  • How the day to day finances will be managed, i.e. bills and mortgage payments
Is it binding?

Whilst it is not possible to guarantee the Court will abide by any agreement, if such an agreement is properly drafted and involves independent legal advice, it is likely to be agreed by the Court.

What happens to the children when we separate?

This would be the same as if you were married (see above). If you are unable to reach an agreement as to the arrangements, a Court Application may be your only option.

Mediation

What is Mediation?

Mediation is a forum whereby you and your ex partner/spouse attend with a trained independent mediator with a view to resolving any outstanding disputes in relation to the arrangements for your children or matrimonial finances. The Mediator would be there to listen to both parties wishes and views and give you assistance as opposed to advice. They would seek to help you reach an agreement.

If an agreement were to be reached at mediation, then it would not be legally binding upon either of you. You would both be entitled to seek your own independent legal advice thereafter.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

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