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Divorce - Frequently Asked Questions

When you are facing a divorce, you will naturally have plenty of questions.

How long will it take? How much will it cost? Do I have to go to court? Is it possible to get Legal Aid? What will happen about our children? How do we deal with the financial side of things? These are just some of the common questions posed to the dedicated London based divorce and family law team at Crisp & Co., and there are numerous others that we answer on a regular basis.

To assist you, our team has compiled a comprehensive list of the most frequently asked questions on divorce together with general responses. We do hope you find them helpful, but of course there is no substitute for personalised advice based around your individual situation, so if there is anything you’d like to ask us about your particular circumstances, please do not hesitate in giving us a call on 0203 857 9885. We have several offices across London and our friendly experts are on hand to give you the tailored guidance you need to help get your life back on track.

General Divorce Questions

Children and Divorce

Finance and Divorce

General Divorce Questions

What are the grounds for divorce?

In order to get a divorce in England or Wales you must have been married for at least one year under a legally recognised marriage and you must also, in most cases, have a permanent home in England or Wales.

In order to apply for divorce, you will have to prove that your marriage has ‘irretrievably broken down’. There are five reasons that are acceptable and you will have to give one of the following:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. You have lived apart for more than 2 years and you both agree to the divorce
  5. You have lived apart for at least 5 years

Many people think that ‘irreconcilable differences’ is a ground for divorce, however this is not the case in UK law and it is likely the assumption has been derived from American law where it is applicable.

What is a ‘divorce petition’?

This is how a divorce is commenced. The divorce petition is issued by one spouse (known as the ‘petitioner’) and served on the other spouse. You will need to complete the petition with your full name and address and that of your spouse and also provide the original or a certified copy of your marriage certificate. You can also include the names and dates of birth of any children you have regardless of their ages, although this is not compulsory.

If you have been served with a divorce petition then you will need to respond by completing the accompanying acknowledgement of service form. If you do not respond within 21 days, your spouse will usually be able to proceed as if you have agreed.

What happens if my spouse refuses to acknowledge the divorce petition?

It depends on what the petition is based on. If it is five years’ separation or unreasonable behaviour, you will be able to proceed with the divorce if it can be proved your spouse received the papers. You can do this by using a court bailiff or process server. It is also possible to apply to the court for deemed or substituted service.

Where the petition is based on two years’ separation or adultery, it could be more of a challenge to proceed. This is because written consent is required from the other party for the two years’ separation, or an admission to the alleged adultery. If you are in such a situation it may be worth applying to amend your petition to one of unreasonable behaviour.

What is a Decree Nisi?

A decree nisi is confirmation from the court that it does not see any reason why you cannot proceed with a divorce. You can apply for a decree nisi if your spouse does not defend your divorce petition. If they do not agree then you can still apply, however you will need to attend a court hearing during which a judge will make a decision as to whether the decree can be granted.

What is a Decree Absolute?

A decree absolute is the legal confirmation that your marriage has officially ended. You will need to wait a minimum of six weeks between the issue of the decree nisi (see question ‘What is a Decree Nisi?) before you can apply for the decree absolute. If you do not apply within 12 months of the decree nisi, you will have to explain the reasons behind the delay to the court.

Will I have to go to court?

It is actually very rare for divorce cases to proceed to court. In many situations and wherever possible, a non-confrontational process will be used. If you are engaging a solicitor who is a member of Resolution (see question ‘What is Resolution?’) then they will have signed up to this sort of approach and will encourage the use of alternative methods of reaching agreements, such as mediation and collaborative law.

How long does a divorce take?

The time taken to finalise a divorce will vary depending on the individual circumstances. If everything runs smoothly, the divorce solicitor works efficiently, the other side responds promptly and you are forthcoming with your instructions, then it will usually take in the region of six months to reach a conclusion.

How much does a divorce cost?

There is a fee of £550 (correct at the time of writing) payable to Her Majesty’s Courts and Tribunals Service to start a divorce, although assistance with fees may be available if you are on a low income or benefits. You can find current information on assistance with paying court and tribunal fees here.

There will also be a fee payable at conclusion for the Decree Absolute. If you engage a divorce solicitor then they will provide you with a fees estimate for their services before you go ahead.

Can I get Legal Aid?

Legal Aid is no longer available for most divorce cases, although there are limited circumstances in which it may be granted. These may include cases involving domestic violence or forced marriage; situations where there is a risk of homelessness; where you are facing discrimination or have been accused of a crime or face prison or detention. You can find up to date information on Legal Aid here on the Government website.

Who foots the bill for the divorce?

This will vary depending on the individual circumstances. If your petition is based on unreasonable behaviour or adultery then you may be able to apply to have your costs covered by your spouse.

Any good divorce lawyer will recommend reaching an agreement on the issue of costs at the outset of the divorce so that needless conflict is avoided down the line. If you are hoping that your costs will be covered by the other side, then be sure to discuss the matter with your solicitor during your first interview.

Do I need a solicitor?

Again, individual circumstances dictate whether it will be beneficial to engage the professional services of a divorce solicitor. If there is any hint of complexity associated with your divorce; if it is contested (if one party is unwilling to divorce) or if there are children involved, then you should definitely give serious consideration to using a solicitor.

If you and your spouse own significant assets or are in business together; if there are overseas connections; if one of you has been declared bankrupt or if you expect to be financially dependent on your spouse once the divorce has been finalised then again it would be to your advantage to engage a solicitor to guide you through the complexities and negotiations and to secure your position for the future.

Can I use the same solicitor as my spouse?

Solicitors are not permitted to act for both parties to a divorce. This is known as a ‘conflict of interest’, so it will be necessary to instruct another firm to represent you.

Can I change mine and my children’s names after divorce?

You can revert back to your maiden name any time you wish either by Deed Poll or in some cases by using your decree absolute and marriage certificate, although some organisations will not always accept the latter and you may find that you will require a Deed Poll for financial institutions such as banks and building societies.

Concerning your children’s names, you will need the permission of all parties who have parental responsibility if you wish to change them. If this is not forthcoming, then you can apply for a court order, but the court will want to see that you have tried to reach agreement using other methods before it will consider the case.

There is detailed information on changing a name on the government website.

Do I definitely need a divorce?

Some splitting couples are of the opinion that it is not necessary to go through the process of divorcing, believing that they can live separate lives without finalising everything officially. This however is not advisable as where a separation is not finalised through divorce, there is no way to obtain a financial agreement and the spouses will continue to be linked under family law. This means that either party could make a claim on the other’s assets in the future, and the respective pensions, endowments and life insurances would not be divided.

What if my spouse lacks mental capacity?

You are still able to apply for a divorce if your spouse lacks mental capacity and is unable to agree to the divorce or take part in the case. Your spouse will need to have someone representing them so that decisions can be made. This person is known as a ‘litigation friend’ and can be a close friend, a family member or someone else they feel they can trust. If there is no one suitable for this role then an application can be made to the court to appoint a litigation friend.

What is collaborative law?

Collaborative law is a process by which people can work towards a resolution to the issues they are facing during their relationship breakdown. Each party appoints their own solicitor, but instead of negotiating by telephone or letter, discussions take place courtesy a series of four-way meetings. By working together it is easier to reach an outcome that considers the best interests of the entire family. Direct communication helps to keep everything on a more even keel, particularly where children are involved and with the help of your collaborative lawyer, you will find it easier to make mutually beneficial decisions between you and your spouse.

What is mediation?

Mediation is a method by which separating couples can agree and resolve the typical issues that arise during the divorce process. During mediation you will work with an impartial guide who will act much like an umpire, guiding you and your spouse through face to face discussions about matters such as children and finances. The mediator is a trained individual who will not represent either party but will instead be impartial.

Once an agreement has been reached, the mediator will draft a ‘Memorandum of Understanding’ to formally set out the proposals. Your solicitor will then use this to draw up your official agreement and further advise you.

Mediation is not suitable for all situations, but it is the right approach for many people and if there is a need for court proceedings to be issued then you will usually be expected to at least have attended a meeting concerning mediation (a Mediation Information and Assessment Meeting – MIAM). If your solicitor believes that a MIAM is not appropriate or necessary, perhaps because proceedings need to commence urgently or because domestic violence is involved, then they will let you know.

What is Resolution?

Resolution is an organisation that you will more than likely hear mentioned during the course of your divorce. There are 6,500 members, all of them family lawyers and other professionals, and every one of them is dedicated to the constructive resolution of family disputes. Members follow a code of conduct backed by a non-confrontational approach, encouraging solutions that take into account the needs and best interests of the entire family, in particular the children.

You can find out more about Resolution here.

Where can I find more information on divorce?

The following resources should provide additional information about the various aspects of divorce:

Children and Divorce

Are child custody and access rights always decided by the court?

Many people believe that the courts make routine orders concerning child custody and access during the divorce process, but this is not the case. If you have children, then aside from the divorce petition you will also need to file a ‘Statement of Arrangements for Children’. This form provides the court with basic details about the children including their dates of birth, where they go to school and who is responsible for their care when the parents are working, if relevant. The form only serves to provide information and will not form the basis of any decision of the court.

In most cases, the parents will make these decisions themselves where possible, sometimes using mediation to assist in keeping discussions on track and in the best interests of the children.

It is worth noting that the court does hold the power to order that a Decree Absolute is not granted until it is satisfied with the arrangements for the children, although it is rarely the case that there will be any objection by the court provided the arrangements are reasonable and there are no concerns surrounding child protection.

Your divorce solicitor will guide you through the process, but do ensure you choose one with a good deal of experience in handling children issues and preferably one who is a member of Resolution, the member organisation dedicated to resolving divorce related issues through a non-confrontational approach (see question ‘What is Resolution?’).

We are having difficulty reaching an agreement about our children. What happens next?

If you have tried mediation without success, and you have not been able to reach a conclusion through the guidance of your respective solicitors, then the next step is to make a court application so that a decision can be made about who the children will live with, and how the other parent will be involved in their lives.

The court will sometimes make a ‘Specific Issue Order’ so that a particular disagreement can be resolved. These are usually issued when a decision cannot be made about, for example, where a child should live or which school he or she should attend. The court will also sometimes grant a ‘Prohibited Steps Order’ to prevent either parent from doing certain things or making specific journeys with the children (such as travelling overseas) without the express permission of the other.

You should be reassured however that in many cases, even when court proceedings have been commenced, agreements are reached before the case gets to a full hearing, or even before any evidence has been filed. These agreements usually come about through the help of an independent Child and Family Reporter, who is an officer of the Children and Family Court Advisory and Support Service (Cafcass). The officer will attend the first compulsory information hearing (the ‘Conciliation Appointment’) with you and their role will be to help you and your spouse reach an agreement before proceedings continue.

You can learn more about Cafcass here.

If it becomes necessary for the court to make a decision about our children, what will it be based on?

The court will always prioritise the best interests of the child, and child welfare will always be of paramount consideration. All issues concerning children are dealt with by the court under the Children Act 1989, which uses the ‘welfare checklist’ to determine its decision.

The welfare checklist considers:

  1. Any likely effect on the child of a change in circumstances
  2. The feelings and wishes of the child, in line with his or her age and level of understanding
  3. The age, gender and background of the child and any other characteristics deemed relevant by the court
  4. The emotional, physical and educational needs of the child
  5. Any harm suffered by the child, or risk of harm
  6. The capability of each parent in meeting the needs of the child

In some cases the court will instruct a Cafcass officer to meet the family and they may request a report to help with the decision making process. If there is any hint that a child is at risk then the court will always give the case special consideration at a very early stage.

What is Parental Responsibility?

All mothers and most fathers have ‘parental responsibility’ for their child. The responsibility extends to providing a home for the child, and to protecting and maintaining him or her.

A mother automatically has parental responsibility for her child from birth and a father will have it if he is married to the child’s mother when the child is born, or later marries her. This also applies to married couples who adopt a child.

In England and Wales, where the parents were not married at the time the child was born, the father will have parental responsibility if the birth was jointly registered with the mother after 1 December 2003. Otherwise, the only way a father can attain parental responsibility is to either obtain a parental responsibility agreement with the mother, or a parental responsibility order from a court.

Parents like to have official responsibility because it provides stability for the child as well as authority and recognition. Without parental responsibility, a parent or guardian cannot make decisions about the child’s life such as which school they should attend, what surname they should have, what religion to follow or giving medical consent, as well as who the child should live with if the parent with responsibility dies.

What happens to Parental Responsibility on divorce?

Married parents who both hold parental responsibility will both keep it if they divorce. Even if there is a Residence Order or agreement to this effect stating that the child should live with a particular parent, the other parent will still continue to maintain his or her parental responsibility rights.

For the non-resident parent, this means that he or she will still have a say in where the child lives, how they are educated and in any medical treatment they need. Whilst parental responsibility does not give an automatic right to contact, in the majority of cases the court will agree that contact is in the best interests of the child. However, if there is a chance that the child will be put at risk through contact, then it likely it will be denied.

What is a Residence Order?

A Residence Order is made by the court when parents are unable to reach an agreement over which parent a child should live with full time. A Shared Residence Order is also a possibility where it is deemed in the child’s best interests, and will set out that the child will live with one or both parents on a shared arrangement. A Shared Residence Order does not always mean that the child’s time is divided equally between the two parents; its purpose is to show that the child has a need to spend a significant period of time with both parents and that their home is with both of them.

I am concerned that my ex-spouse will prevent me from seeing my child. What can I do?

If you cannot reach an agreement through mediation or your respective solicitors, then you can make an application to the court for a Contact Order. The process commences with a Conciliation Appointment which will be attended by both parents and your Cafcass officer (see question ‘We are having difficulty reaching an agreement about our children. What happens next?’). In many cases an agreement is reached at this point before proceedings go any further. However, if this is not the case then the court will issue a Contact Order.

Individual circumstances dictate how much contact each partner will get and this will usually be subject to periodic review. The court will usually feel that the child’s best interests dictate that contact with both parents is necessary and it is very rare for a Contact Order to provide that only parent should have contact.

What happens if my ex-spouse breaches the Contact Order?

If you are permitted to have contact with your child under a Contact Order, but your ex-spouse is preventing you from seeing him or her, then you may need to make an application to the court for enforcement of the Order. This may result in your ex-spouse being fined or, if the breaches are ongoing, imprisoned, although this is an absolute last resort, particularly if it would not be in the best interests of the child. Extreme cases may lead to a child’s residence being transferred to the other parent.

My ex-spouse’s parents are insisting they have a right to see our children. Is this correct?

No other members of the family have any automatic legal right to contact and this includes grandparents. They are however within their rights to apply to the court for a Contact Order and this will usually be granted if it is deemed the contact is in the best interests of the child.

My ex-spouse wants to take my child to live overseas. What are my rights?

If you have parental responsibility (see question ‘What is Parental Responsibility?) then if you do not agree with the plans, your ex-spouse must apply to the court for permission to relocate your child in another country. The court will only grant permission if it believes the move would be in the child’s best interests.

Can my ex-spouse take my child out of the country for holidays without my permission?

Providing a parent has parental responsibility (see question ‘What is Parental Responsibility?) then they will usually be allowed to take their child on an overseas holiday for a period of up to 28 days without gaining consent from the other parent.

If however you have reason to believe your ex-spouse is planning to take your child out of the country permanently, then you should not hesitate in making an emergency application to the court for a Prohibited Steps Order. This will prevent them from taking the child overseas. Issues like these are extremely sensitive and it is imperative that you take advice from a highly experienced child law expert with specific expertise in these types of cases, because certain actions can trigger reactions that may make the situation even more of a challenge to resolve.

Under normal circumstances, child maintenance is dealt with by the Child Support Agency (CSA). They will work out how much the non-resident parent should pay to the resident parent.

Where the non-resident parent lives abroad, unless they are a UK registered company or government employee, the CSA will not handle the maintenance payments. If an agreement cannot be reached between the two parents over payments in these cases, then it will be necessary to make an application to the court for a Child Maintenance Order.

The court may also become engaged in child maintenance issues under other circumstances, including where the parent liable for the payment is particularly wealthy; if there are educational expenses to be covered or once the child reaches the age of 17 and is therefore no longer under the scope of the CSA.

Isn’t it true that the court always grants custody to the mother?

There is no law that dictates that children should live with one parent or the other. In all cases, and only where it is necessary because the parents have been unable to reach their own agreement, the court will make a decision based on the best interests of the child.

Where can I find more information on children and divorce?

The following resources should provide additional information about children related issues when divorcing:

Finance and Divorce

What is a Financial Agreement?

The financial agreement on divorce sets out how money and property should be divided. It is not usually necessary to have the court involved in a financial agreement, but it is highly advisable to use a family law solicitor to make your agreement legal binding so that both parties are protected. If you do find it necessary to get the court involved, you will have to show, in some instances but not others, that you have attended a meeting to work out whether mediation is an appropriate way to attempt to resolve any differences (see question ‘What is Mediation?’).

What is the process if it becomes necessary to decide the financial agreement in court?

The court prefers such matters to be decided using alternative methods such as mediation (see question ‘What is Mediation?’), purely because it saves time and money to do so.

However, if you cannot reach a financial agreement (see question ‘What is a financial agreement?) then the process will involve a maximum of three court hearings. The first hearing, the ‘First Directions Appointment’, will see the court decide what evidence needs to be called. Next comes the ‘Financial Dispute Resolution Hearing’. This is a formal hearing during which the positions of each party are presented to the judge. The judge will then set out his or her beliefs as to how the case will conclude.

Most cases reach a settlement at this point, however if this does not happen then the next step is the Final Hearing, during which a decision will be made by the court as to how the matrimonial finances and property should be divided and any maintenance payments agreed.

When does the financial agreement have to be reached?

You can deal with the financial agreement any time before or after the divorce, but it is strongly advised that you reach an agreement before you or your ex-spouse remarry, as this could mean your right to make a claim is lost. Reaching a settlement before the divorce is finalised is the best course of action. It allows the court to issue any appropriate financial orders at the same time the decree nisi is granted (see question ‘What is a Decree Nisi?’).

If the divorce is granted and the financial agreement has not yet been settled, will we still be able to make claims against each other?

Yes you will still be able to put claims forward, however if your spouse has substantial assets or pension rights then it is usually in your best interests to delay the decree absolute application. If your spouse was to unexpectedly die after the decree absolute was granted, but before the financial agreement was settled, then these assets may pass through the rules of inheritance to another beneficiary.

If I make any payments to my spouse during the divorce process, will this affect the final agreement?

You should not find that this is the case, and indeed if your spouse requires maintenance payments then you would usually be well advised to make them in order to avoid an acrimonious situation. Conversely, do consider that any particularly large payments made could be construed as your spouse having a need for such amounts, and may be used as evidence of your ability to meet such demands. Always take specialist legal advice before making any payments.

What is an Interim Financial Order?

If you are on a low income and were dependent on your spouse for maintenance then you should try to reach an agreement concerning interim spousal maintenance. If you cannot reach such an agreement either through your own discussions, your respective solicitors or using mediation, then an application can be made to the court for an Interim Financial Order.

During the process you will have to prove that you have a genuine need for the payments. You will be required to show your current earnings, benefits and any money received from your ex-spouse together with your capital, any outstanding debts and full details of what you need in terms of living costs. Do bear in mind that the proceedings can be costly, and if it transpires that your spouse is not able to make the payments you are requesting, then you could end up paying out for no reason.

How are maintenance payments calculated?

This is something that is completely variable on individual circumstances. The needs of each spouse, their assets and their ability to earn income will be considered, as will the standard of living before the marriage breakdown. The length of the marriage and the ages of the spouses will be factored into the decision, as will any special needs and the contributions each party made to the marriage.

Most younger couples who divorce after a relatively short marriage that did not bear any children will usually walk away keeping the assets they brought with them with no liability either way for maintenance. However, a couple married for two or more decades where one party was responsible for raising the children and keeping the home whilst the other was the bread winner will result in a very different outcome.

Where children are involved, any maintenance will be dealt with separately as a priority.

Is it true that the wife always gets the house?

This is one of the most common divorce related myths. Determining who keeps the house, or indeed whether it should be sold and the proceeds split (another myth – many people believe this is a necessary process on divorce, which it isn’t), is something that can only be concluded after numerous factors are considered. The needs and best interests of everyone involved, in particular any children, will always come first when making such a decision.

Sometimes the family home will remain in joint names, with permission for one party to continue to live in it. It really depends on what other assets you have and what each party wants. Sometimes, where assets are in abundance, it is the case that one party keeps the property and the other takes a corresponding share of the other assets. In other situations it may be that the home is sold and the proceeds split, allowing each party to invest in their own, smaller property.

If you have children then the law dictates that they must have a home where they can live with the resident parent. Usually it is deemed in the children’s best interests to stay in the family home, whilst the non-resident parent seeks alternative accommodation. It all depends on the assets involved.

If the property is to be transferred from joint names to a sole name and there is a mortgage on it, the lender’s permission to transfer the loan into a sole name will have to be obtained.

When dividing property on divorce, it is vital to engage the assistance of an experienced family law solicitor who will also be able to utilise the services of colleagues in their firm’s property department. Professional advice will more often than not make a marked difference in both the short and long term where protecting yours and your children’s best interests is concerned.

What should I do about our joint bank, credit card and savings accounts during the divorce?

If your accounts allow withdrawals with only one signatory then there is obviously a risk that your spouse may take money from them. Also bear in mind that any debts, such as overdraft facility fees or interest will be your joint liability.

If you have any concerns then you may wish to consider closing any jointly held accounts. However, you should proceed with caution if any of them are used to pay bills for living expenses, as you may find yourself with a demand for maintenance payments and your spouse may even apply to the court for an interim financial order (see question ‘What is an Interim Financial Order?). Never make any decisions or take evasive action without first consulting a divorce lawyer who will advise you on the best course of action in your particular circumstances.

What is the situation with pensions on divorce?

A pension forms a marital asset, just like a property or monetary funds. The value of a pension will usually be taken into account when working towards a financial settlement on divorce. There are various options including splitting the pension fund into two separate funds; making arrangements for a portion of the pension to be paid to the other spouse once it is due to be paid and transferring a lump sum or other assets to the other spouse in order to offset the value of the other’s pension fund.

What happens to endowments and life insurances on divorce?

Life insurance and endowment policies all form part of the financial settlement. You will need to reach an agreement as to how each individual policy will be dealt with. Will you continue to pay the premiums? What about the beneficiaries of any life insurance cover, will these change?

It may be that you decide to surrender certain individual policies, but you should take independent financial advice before making such a decision because early surrender could lead to financial losses and there may also be tax implications. If you have policies in joint names then these will usually be surrendered or transferred into a sole name. Professional advice on an independent basis is crucial to ensure you are making decisions that are in your best interests.

Are overseas assets taken into consideration?

Any offshore assets can be considered as part of a divorce settlement in the same way as onshore assets. It is common for parties to attempt to conceal assets based abroad or to transfer them to make it a challenge to claim. If you have reason to believe your spouse is attempting to do so, do not hesitate to bring it to the immediate attention of your divorce lawyer.

Once the divorce is finalised, can I get a ‘clean break’ where the finances are concerned?

In many cases this is possible. It may be that instead of paying ongoing maintenance, there is an allowance to stump up a lump sum and / or assets as appropriate. Once an agreement like this has been confirmed via a court order, neither party will be able to return to court in the future to request maintenance or further assets. Many divorcing couples prefer these clean break agreements as it allows them to permanently separate their financial affairs, so giving them clarity for the future. It is not however possible to reach a clean break agreement with regard to child maintenance.

Where can I find more information on finances on divorce?

The following resources may be able to provide you with further information:

Gov.uk – Money and Property When a Relationship Ends

The Importance of Tailored Advice on Divorce

The family and child law specialists at Crisp & Co Solicitors have put together this guide with the aim of providing general assistance on the various issues surrounding divorce. Please do bear in mind that the answers to the questions posed are not specific to any particular circumstances and that it is of great importance before making any decisions that you take tailored advice from a legal specialist. You can get that advice from the experts at Crisp & Co by calling 0203 857 9885.