DIVORCE – YOUR QUESTIONS ANSWERED
Divorce law is complicated, particularly where children are involved and finances are mingled. The likelihood is that if you are considering divorce you may have questions about what is involved. Here we consider the top 10 common divorce questions and answers.
10 COMMON DIVORCE QUESTIONS ANSWERED
Here are 10 common divorce questions:
- How do I get a divorce in England and Wales
- What are the main grounds for divorce
- How long does a divorce take
- What do I need to get divorced
- Will I have to go to court
- Can divorce be mutually agreed between us
- How do we divide our finances
- Specifically, how is the house dealt with in a divorce
- What are my options other than divorce
- When will I be able to remarry after my divorce
1. HOW DO I GET DIVORCED
In order to apply for a divorce (in England and Wales only – Scotland has different laws) you must have been married for at least 1 year. If you separate before your first anniversary you can still plan to divorce by readying papers and engaging a solicitor so when your first anniversary does fall no further time is lost.
It is recommended you use a solicitor who can guide you through each stage. In some circumstances, your spouse can be ordered to pay some or all of your legal costs connected with the divorce for which specialist knowledge to guide you through the pitfalls maybe needed. This is especially important if your spouse has also engaged a solicitor.
To begin the process, a petition must be filed at the court which must be based on one of five “facts” (see further Answer 2). The petition will then be sent to your spouse (by the court) who must return a document known as the acknowledgement of service, usually within 14 days.
Depending on your spouse’s reply you will make a further application to the court for a certificate confirming you are entitled to a divorce provided that the court is satisfied with all the paperwork. They will set a date for the pronouncement of decree nisi, the formal pronouncement ending your marriage. However, it is not the last, and no sooner than six weeks and one day after the pronouncement of decree nisi you are eligible to apply to the court for the decree of absolute which, upon pronouncement, formally ends your marriage.
Eddowes Perry & Osbourne can guide you through every stage, whether as the petitioner (the spouse asking the court for the divorce) or as respondent (the other spouse who responds to the petition). Our advice is clear and straightforward, and our costs based on middle-market regional rates. Our expertise and client care, however, is unrivalled.
When you engage us we will:
- Explain the divorce process and what is required at each stage
- Outline your options
- Start the divorce process for you including whether you are entitled to claim your legal costs
- Provide advice and support throughout, including your living arrangements and those of your children and your financial circumstances, including pensions, inheritances, debts and any contributions (financial or otherwise) you may have made before or during the marriage.
2. WHAT ARE THE MAIN GROUNDS FOR DIVORCE
What are the grounds for divorce in the UK in 2022?
The divorce, dissolution and separation act 2020 became law on April 6, 2022, and removed the concept of fault from the divorce process – the requirement of placing blame or assigning a specific “reason” to the irretrievable breakdown of the marriage.
This reform is widely expected to reduce acrimony and result in a more harmonious separation for many divorcing couples.
Under the new no-fault divorce law, you will no longer be asked to prove the irretrievable breakdown of marriage to the court by citing one of the five grounds for divorce that were previously used in the UK.
The new divorce act dispenses with reasons, or ‘facts’ as grounds for divorce, replacing them with a single ‘Statement of Irretrievable Breakdown’ which can be filed by either spouse or both.
This means divorcing couples can now file for divorce solely on the basis of the irretrievable breakdown of their marriage without citing grounds for divorce.
Furthermore, the option for either spouse to contest the divorce has also been removed, meaning there is less chance of the divorce process descending into a long-protracted court battle, allowing the application to proceed without friction or additional costs.
3. HOW LONG DOES A DIVORCE TAKE
A straightforward uncontested divorce usually takes between 4-6 months. However, it can take longer if it is delayed due to certain situations for example, issues with children, property or money. These issues need to be resolved between the two parties to avoid delay. It is rare these days for a divorce to be defended (i.e. one party refuses to accept the marriage has irretrievably broken down). Defended divorces rarely succeed.
4. WHAT DO I NEED TO GET A DIVORCE
To start the divorce process, you need the following:
- Your spouse’s full name and address and those of his/her solicitor if you know.
- Your original marriage certificate or a certified copy.
- Proof of your name if you have changed it since you got married.
- At least £550 in available funds to cover our deposit and/or the court fee (although you may be exempt from paying this under certain circumstances)
5. CAN YOU GET A DIVORCE WITHOUT HAVING TO GO TO COURT
The application process is made to the local family court and is only in those rare cases where the divorce is defended that you would need to attend a court hearing.
6. DOES DIVORCE HAVE TO BE AGREED UPON
A Divorce does not have to be mutually agreed and you do not need your spouse’s consent provided he or she has either acted unreasonably or where he/she has committed adultery. In those cases or where you have been separated for 5 years or where your spouse has deserted you (in the legal sense) you can proceed without consent. However, it is always better to obtain agreement from your spouse as unopposed and consensual divorces proceed quicker and more easily than those which are opposed or not agreed.
7. WHAT IS A FINANCIAL AGREEMENT
When you divorce your spouse, it is generally advisable to enter into an agreement to separate your finances. This agreement is known as a financial agreement or order on divorce, commonly known as a financial consent order.
Consent orders cover details of how property, pensions, savings and investments and businesses will be divided. They may also cover maintenance payments to help with children (child maintenance) or for you or your spouse’s living expenses (spousal maintenance).
Financial consent orders are complicated legal documents that require careful consideration and expert drafting even where the assets are considered straightforward or where there may be none. We always recommend a solicitor is engaged to deal with finances on divorce so that you or your spouse’s financial claims do not remain open indefinitely. This can be especially important if you want to remarry or cohabit with a new partner or where there is a risk of accident, disability or even where an insurance pay-out or inheritance is pending.
8. HOW IS THE HOUSE DEALT WITH IN DIVORCE
In many marriages, the family home is the main asset. The agreement will need to be reached as to whether the person who stays in the home should buy the other’s share, whether the house will be sold, and proceeds divided in an agreed manner or whether the primary carer of the children stays remains in the house until the youngest child turns 18 (and then the house is transferred or sold at that point).
Property matters are of high importance and the court will want to know where both parties and the children will be living. Again, in almost every case specialist legal advice shall be needed.
9. WHAT ARE MY OPTIONS OTHER THAN DIVORCE
If your marriage has broken down, but you are not sure whether you want to end your marriage then there are alternatives to divorce:
Informal separation – You and your spouse decide to go your separate ways informally without divorcing or putting in place a financial agreement. This is never advised.
Separation Agreement – You and your spouse decide to separate formally and put in place a formal separation agreement drawn up by a solicitor which establishes the agreed financial arrangements for the period of separation. Usually, the agreement would also outline how you would like your finances to be divided should you subsequently divorce. Separation agreements require careful planning and drafting and must follow specific legal requirements to ensure they can be enforced. They can still be overturned by a court under certain circumstances.
Judicial Separation – This is a formal separation sanctioned by the court. You remain formally married but, it is legally recorded that you are no longer a couple. The process is like divorce, in that a petition for judicial separation is submitted based on one of the same 5 reasonings for divorce. However, you do not need to prove that the marriage has irretrievably broken down as in the case of divorce.
10. WHEN WILL I BE ABLE TO REMARRY AFTER MY DIVORCE
You can remarry immediately after receiving your Decree Absolute certificate (even if you have not yet concluded your financial agreement). The Decree Absolute certificate is a legal document which concludes the divorce process. You need to keep this certificate safe because it confirms that your marriage has officially ended, and you are able to remarry. Be warned however that if you remarry before you conclude the financial element related to your previous marriage you may encounter difficulties attempting to do so later. Again, specific legal advice is required in this situation.
In safe hands
I can’t thank David Smith enough for the way in which he handled my divorce. His friendly and approachable manner was much appreciated, throughout what was inevitably a difficult and emotional time. He also fought my corner with tenacity, leading to a fabulous financial settlement. At a time of such uncertainty, it is reassuring to know that you are in safe hands……I would not hesitate to recommend David to anyone going through the same experience.
Great, clear advice delivered in a personable manner
David’s advice was critical in resolving a complex family matter. Without his involvement, the case would have stalled. He helped me to understand the legalities of the situation and provided direction in what I found to be a highly confusing situation. Great, clear advice delivered in a personable manner.
Nothing was too much for him
David really made me at ease and helped me through the whole process. Nothing was too much for him and he always made time for me.
Huge thank you to David
Huge thank you to David for making a horrible stage of my life, going through a hostile divorce a whole lot more bearable. Don’t know how I would have got through it without you.