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Stowe Family Law Blog

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      How we can help with your divorce

      Since the firms founding (1982) Stowe Family Law have specialised in all areas of divorce.

      At Stowe, we have over 75 specialist divorce lawyers and collective experience of over 800 years so whatever your situation is, it will be familiar to us.

      The divorce process

      Beginning the divorce process may be another step in what has already been a frustrating and challenging journey for you and your relationship. 

      You may have children, shared assets, pensions and share a home with your spouse; all of which can be difficult to handle, particularly if you and your spouse can’t agree on arrangements or how assets are to be divided. 

      To save further heartache and difficulties in the future, it’s better to seek out tailored divorce advice early in the process. 

      An experienced divorce lawyer will outline how you can protect yourself from future legal disagreements while guiding you towards a fair settlement that will allow you to move on with your life. 

      Divorce

      • Can I get divorced?

        To be eligible for divorce or to end a civil partnership, you need to have been married or in the civil partnership for 12 months or more. 

        If this is not the case, you can apply to annul the marriage or complete a (judicial) separation application.

      • My marriage is in trouble, but I don’t want to get divorced, can we just separate?

        If you separate but do not get divorced, you will remain legally tied to your spouse. This means both that you will still be husband and wife and you will remain financially tied. The financial claims that arise upon divorce also remain open and can be addressed at a later date.

        It is possible to go through a legal process called judicial separation, whereby you remain married but legally separated, which can also deal with most but not all financial claims. In practice, this is rarely used.

      • I think I want to get divorced, but what does this mean?

        Getting divorced legally brings your marriage to an end, so that you are no longer husband and wife. 

        It is essential to understand that the divorce in itself does not end the financial obligations that arise within marriage, and this requires a separate order that sits alongside the divorce.

      • I am in a same-sex marriage or civil partnership; does this make a difference in how my separation is dealt with?

        The process for ending a same-sex marriage or civil partnership is the same as for heterosexual marriages. The primary difference is that you cannot rely on the grounds of adultery.

      • There is violence in my relationship; what can I do?

        At any time that you feel under threat or in danger, then the first step is to dial 999. 

        However, protection can also be obtained from the family court, including orders which regulate the occupation for the family home (and exclude the violent party), and orders that prohibit certain behaviour.

        Further information on domestic abuse

      • How do you get divorced?

        There are five key stages in the divorce process. These are as follows: 

        1. Decide on the legal reasons on which you wish to rely for divorce
        2. Complete a divorce petition
        3. Submit the petition to a divorce centre either online or by post with the correct court fee
        4. Apply for a decree nisi (once the petition is acknowledged by your spouse)
        5. Apply for a decree absolute (6 weeks after you have the decree nisi)

        However, the act of divorce itself does not put an end to the financial relationship between you and your partner.

        To separate your finances, you must reach a financial settlement; a legally binding decision on how assets and wealth will be split now the marriage has ended. 

        Arrangements for children will need to be made if required, but these are also dealt with separately to the divorce. 

        How to get divorced

      • What are the grounds for divorce?

        The long-awaited ‘no-fault divorce’ will finally become law in autumn 2021. Until then you must cite one of five reasons for divorce in support of your claim that the marriage has irretrievably broken down.

        Adultery – For this one, it is worth noting that your ex-partner will have to admit to an affair formally; otherwise, you will need to have to prove it. This is not available for civil partnerships and same-sex marriages.

        Behaviour – The most commonly used reason as it can cover multiple behaviours and issues.   You will have to put some details on the petition, but the other party does not have to formally admit the behaviour. The relevant type of behaviour by your spouse is something which you should not be reasonably expected to live with.

        Separation, two years – You have lived apart for two years, and the other party consents to the divorce.

        Separation, five years – In this case, the consent of the other party to the divorce is not required. 

        Desertion – this is something more than just separation; it is the abandonment of one party to the marriage by their spouse. It is a ground which is rarely used.

      • What is a 'divorce petition'?

        A divorce petition, otherwise known as D8 form, marks the start of your divorce process. 

        The form is filled out by one spouse (the petitioner) and is filed at Court, and then sent by the Court to the other (the respondent).

        The divorce process takes on average 18-22 weeks, and can you apply online.

      • Does my spouse have to agree to the divorce?

        You can usually divorce your spouse without their consent. 

        While it is always preferable that they cooperate, all is not lost if they don’t.  You have to go through the same procedure in terms of the petition itself, but you can progress even if they will not engage with the process.

        If there is no cooperation from them, then you can issue an unreasonable behaviour petition and get them personally served. Once personally served, you can proceed whether they cooperate or not.

        Getting a divorce without consent

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

        There are several options open to people if their spouse does not return the Acknowledgment of Service to the Court, but this depends on the fact relied upon in the divorce petition. 

        For example, if you have used unreasonable behaviour, 5-year separation or desertion, you can proceed without the return of the Acknowledgment of Service, provided you can evidence that they have been served with the papers.

        However, if your petition is based on 2-year separation or adultery, you will require your spouses’ express consent/admission and the return of the Acknowledgment of Service. 

        If this is not achievable, you can amend your petition and rely on a fact that does not require your spouse’s consent as mentioned above.

        What can I do if my spouse ignores the divorce petition

      • What is a Decree Nisi?

        The Decree Nisi is the first decree of a divorce. The Decree Nisi does not bring the marriage to an end. At this stage, the couple remains married in the eyes of the law and can still move back from finalising the divorce. 

        The Decree Nisi signifies that the court is satisfied that the petitioner is entitled to the divorce and that the procedural and legal requirements have been met; meaning the paperwork has been completed and served correctly and the reason/details provided in the divorce petition are sufficient. 

        The Decree Nisi is a very important part of the divorce process as it allows the court to approve or make a financial order to settle matrimonial finance claims between the parties.

        Example Decree Nisi

      • What is a Decree Absolute?

        Once you are in receipt of the Decree Nisi and have waited six weeks and one day you can apply for the Decree Absolute. This is the final decree of divorce and legally ends the marriage. 

        In some cases, there may be financial reasons to delay applying for the absolute until a  financial settlement has been reached.

        You should keep your Decree Absolute as you may require it if you remarry or seek to change back to your maiden name.

        Example Decree Absolute

        Please note this Decree Absolute relates to a petition based on adultery and some of the wording would be different were it relating to behaviour/2 year separation or 5-year separation.

      • How long does a divorce take?

        On average, the divorce process in England and Wales takes between four to six months.

        However, several factors can impact on the length of a divorce, including a lack of cooperation by one party, complicated financial matters and/or child arrangements along with delays at divorce centres and family courts.

        How long does a divorce take?

      • How much does a divorce cost?

        The cost of a divorce depends on the method you choose and the complexity of the case.  

        There is a standard court fee of £550 to process the divorce application. In an average, uncontested divorce, when a solicitor is acting, the cost of preparing the paperwork and progressing the proceedings is likely to be in the region of £750-1,000 plus VAT. 

        In cases where there are financial and/or child arrangements to resolve, solicitor costs will vary depending on the complexity of the issues and if additional court proceedings are required.

        How much does a divorce cost?

      • When getting a divorce, how can I make the divorce process cost as little as possible?

        Unless you are entitled to a fee exemption, you will have to pay the court fee of £550. 

        It is, however, possible to file the divorce yourself via the online process, which will then avoid incurring the solicitor’s costs set out above.

      • Can I get Legal Aid?

        Changes to funding in 2013 saw a dramatic reduction in the eligibility of legal aid in family law and is now only available for specific types of cases including when domestic abuse, child welfare and social services are involved. You can check further details here. 

        We do not have a contract with the Legal Aid Agency and are therefore unable to offer legal aid to our clients.

        Search here for a list of approved legal aid solicitors and law firms on the government’s legal aid website

      • Do both parties have to pay for the divorce?

        The general rule on who pays the legal fees in a divorce is that each person getting divorced will pay their legal costs and the person applying for the divorce (the petitioner) will be responsible for covering the court fee (which is currently £550) and other costs. 

        However, on a fault-based petition (unreasonable behaviour or adultery), it is possible to make an application for costs from the other person. Often, an agreement will be reached to share the costs between both parties before the petition is submitted. 

        It is important to note that costs relating to the divorce are different from those incurred in negotiating a financial settlement and/or child arrangements. 

        Save in respect of divorce costs which may be shared as above; the usual course is that each party covers their legal costs. 

        Who pays the legal fees in divorce

      • Do I need a solicitor?

        If you file the divorce petition yourself via the online process, you may not need a solicitor for the divorce.

        However, It is strongly advised to take legal advice on any financial settlement.

        Tips for choosing the right solicitor for you

      • Can I use the same solicitor as my spouse?

        No, you cannot use the same solicitor as your spouse as this would give rise to a conflict of interest. It is advisable for you both to take independent legal advice from your own solicitors.

      • Will getting lawyers involved in a divorce make things more hostile?

        Not at all. We would recommend both parties instruct solicitors who are members of Resolution, a body of family lawyers committed to resolving matters without conflict.

      • Will I have to go to court?

        It depends. It is unlikely that you would need to go to court for the divorce proceedings themselves. 

        If you reach a financial settlement by agreement, that will usually be dealt with on paper, without court attendance. 

        If you cannot reach an agreement despite trying tools such as mediation or arbitration, it is maybe necessary to deal with this via the court process, which will usually involve attending court for hearings.

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

        You can change your name, but not your children’s names unless their other parent consents.

        By law, you can simply adopt a new name and start using it. However, you will need a deed poll or other types of formal documents to update your passport, driving licence, bank accounts and other official records.

        How do I change my name?

      • What if my spouse lacks mental capacity?

        The primary consideration is whether the party with mental health concerns has the capacity to provide instructions and to agree to a divorce or financial settlement. 

        Under English law, a person’s mental capacity is judged according to the decision that needs to be made. For example, can they understand the relevant information relating to a financial settlement to make an informed decision?”

        If there are doubts over someone’s capacity, a doctor must make an assessment to determine whether they can make the specific decisions they face.

        If they decide they do not, it is possible to progress the case if a representative, a ‘litigation friend’, is appointed to act on their behalf and make decisions in their best interests.

        Divorce and mental capacity

      • Are there any alternatives to divorce?

        Many people going through a separation don’t necessarily feel ready to dive straight into divorce proceedings. 

        In this case, there are several options available, including judicial separation, annulment and a separation agreement. 

        Alternatives to divorce

      • What is a collaborative divorce?

        A collaborative divorce involves both parties having their separate lawyers that work together to achieve a settlement that suits the whole family, avoiding going to court.

        The process enables a couple to discuss, in a safe environment, their hopes and concerns. 

        It allows them to retain control over the decision-making process, rather than a judge, who may only meet them for the first time at a final hearing, deciding the settlement.

        It reduces the risk of conflict, misunderstandings and the expense and stress of court proceedings. 

        It is also a particularly good option if you have children and can help you both develop a constructive and cooperative relationship moving forward.

        How does collaborative divorce work? 

      • What is mediation?

        Mediation is often a more dignified and conciliatory way of sorting out issues arising out of separation or divorce. When successful, it is a cheaper and quicker process compared to litigation/court-based applications. 

        Mediation may limit the stress and anxiety that you and your ex-partner experience during the relationship break up, and is often a good option where you have children to enable you to continue to communicate constructively.

        Mediation is a voluntary and confidential process whereby you jointly meet with a qualified mediator, whose role is to assist the two of you to reach an agreement, rather than to advice either one of you. 

        This approach helps couples that are separating to have an open and honest dialogue to reach agreements that can then be converted into legally binding agreements with the help of their solicitors. It is usually important to each have independent legal advice alongside the mediation process.

        Can you use mediation to help you separate?

      • What is arbitration?

        Arbitration is a form of dispute resolution and involves a third party (the arbitrator) adopting the role of Judge. The arbitrator will decide on the issues they are appointed to deal with after reviewing and hearing evidence from both parties in the same way that a Judge would at a final hearing.

        When conducting an arbitration, arbitrators are required to apply the law of England and Wales. The arbitrator’s final decision is binding on both parties and is known as an Award (financial matters) or a Determination (children matters). The decision can then be embodied into a Court Order and submitted to Court for approval by a Judge.

        There are several benefits of arbitration over the court system, including less time, more cost-effective, greater control of the case and confidentiality. However, both parties have to agree to engage in the process, and there are additional costs involved in paying the arbitrator to hear your case.

        Arbitration v Court

      Children and divorce

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

        Courts will only wish to get involved with issues concerning children when all other options have been exhausted. 

        In an ideal world, parents will be able to agree about how the children will spend time with each of them. However, for several reasons, this is not always possible. 

        There are several tools available on the Cafcass website, which can help to focus parents on the elements of looking after a child which should be agreed on.

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

        There are a number of options available when parents are having difficulties reaching an agreement regarding the care of their children. 

        If you have tried to reach an agreement but cannot, it can be helpful to speak to a solicitor and seek advice as to what could be a suitable arrangement. 

        If there are still difficulties in agreeing then the next step would be to try mediation. 

        Mediators are specially trained in assisting parents in coming to an agreement, and it can be a much less stressful process. 

        A qualified mediator will try to ensure that the conversation between the parents remains focused, and it can often reduce any animosity between you.

        There is the possibility of shuttle mediation if the parents do not want to be in the same room as each other. Some mediators will now involve the child in the process if the parents agree that it is suitable for them to do so. 

        If negotiation either by solicitors or through mediation is not successful, the final alternative would be to make an application to the court. Unless you are subject to specific exemptions, you will require a document (known as a MIAM) to be signed by a mediator as evidence of your attempt to resolve the issues.

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

        The court will make its decision based upon what is in the best interests of the child. 

        When deciding on arrangements for a child, the court has to be mindful of the welfare principle and the welfare checklist. 

        The welfare checklist requires the court to have regard to (but not limited to) the following:

        • The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
        • Their physical, emotional and educational needs;
        • The likely effect of any change in circumstances;
        • Age, sex, background and any characteristics which the court considers relevant;
        • Any harm which they have suffered or are at risk of suffering;
        • How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
      • What is parental responsibility?

        The definition of parental responsibility is the legal rights, duties, powers, responsibilities and authority a parent has for a child. 

        All mothers, fathers registered on the birth certificate on or after 1 December 2003, fathers married to the mother at the time the child was born and civil partners of the mother registered on the child’s birth certificate have parental responsibility. 

        When someone has parental responsibility for a child they have a right to make decisions concerning their care along with important decisions in a child’s life

        These decisions include where a child lives, how and where they go to school, any medical decisions and giving consent for a child to leave the country. 

        If someone or a father wants parental responsibility, there are a variety of ways to achieve this. 

        You can obtain a parental responsibility order which will confirm that the child lives with them, that they are a special guardian and have adopted a child.

      • What happens to parental responsibility after divorce?

        If you have obtained parental responsibility automatically, then this will not alter following a divorce. 

        It may be different in cases such as when you have a special guardianship order, and that order is removed and replaced.

      • What is a Residence Order?

        In April 2014 changes were introduced in law which removed the phrases ‘residence orders’ and ‘contact orders’. 

        These two separate orders amalgamated into one order known as a child arrangements order. 

        This sets out the overall arrangements for a child, including who the child should live with, spend time with and a variety of other orders the court can make. 

        Most parents have found that having the arrangements set out clearly in one order is much easier.

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

        The family courts have a concept called the ‘no order principle’. 

        This means that unless there is a genuine reason as to why an arrangement should be set out in an order, they will persuade parents to try and resolve issues between themselves. 

        This can be difficult in circumstances where a parent is concerned that their ex-spouse may prevent them from having contact in the future. 

        It is always good, as a general practice, to put a parenting plan in place at the earliest possible stage to ensure that you both know what the arrangements are.

        What is a parenting plan? 

        If however, your ex-spouse becomes increasingly difficult or will not allow contact at all, then you will have to attempt mediation first before looking to make an application to the court.

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

        In the first instance, try and discuss the breach (s) with the other parent in the hope that you can reach an agreement without having to return to court. 

        Another option is to use mediation as a neutral forum with a third-party to try and resolve the disagreements. 

        However, in some cases, it is not possible to discuss or agree on arrangements, and therefore the matters must be returned to the court to enforce the original order.

        The family courts have several powers available to them when considering an application to enforce an order including fines, unpaid work and very rarely prison.

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

        Grandparents have no legal rights to see their grandchildren. However, the law does recognise a child’s right to family life, and this is not necessarily limited to parents.

        There are provisions within the law which allow grandparents to ask the Court for the right to see their grandchildren. Many grandparents and wider family members have successfully re-established contact with the assistance of the family courts.

        If the relationship is positive, it is worth considering the significant emotional, psychological benefits to a child of a relationship with their grandparents.

        Grandparents rights after divorce

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

        To take a child to live in a different country without the other parent’s consent amounts to International Child Abduction. 

        It is essential for a parent wishing to move a child to live in a country outside of the UK that  either: 

        (a) both parents agree, or 

        (b) the courts must grant or deny permission for the move. 

        Without either, the courts can be involved to order the return of the child.

        Moving abroad with a child following a divorce or separation

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

        As married parents, you both have parental responsibility for the child, and you will each require the written consent of the other to remove the child from the jurisdiction (country) for any purpose. 

        If your former spouse has a child arrangement order (or a residence order if it was made before the terminology was changed), they can remove the child without your consent for a period of up to 28 days. 

        However, if you have any concerns about this, you should take legal advice as to whether you may be able to seek an order to prevent travel.

        Advice if you are travelling abroad if your child has a different surname.

      • Who decides what maintenance should be paid for my child?

        There is not a standard amount of child maintenance that everyone pays as there are different criteria and circumstances which can impact on the amount. 

        These include how many children there are, how much the parent responsible for paying maintenance earns and how much time the children spend with each parent.

        The minimum amount of child maintenance is directed by the Child Maintenance Service (CMS). You have to pay child maintenance if your child (or children) does not live with you for an equal amount of time and spends more nights with the other parent. 

        The government has a helpful online calculator which can be used to work out how much child maintenance you should be paying.

        How much child maintenance should I pay?

      • Is it true that the court always grants custody to the mother?

        No, this is not the case, and the court does not use the term custody. 

        The court can make orders determining who children should live with, which may be the child living with both parties on a shared care basis, or for the child to live with one parent and spend time with the other. 

        The mother is not given preference by simply being the mother, and the court will determine these issues based upon what is in a child’s best interests, and based on the welfare checklist detailed above.

      Finances and divorce

      • How will our family assets be split?

        It depends. The court has to take into account a number of factors when deciding how to split assets. 

        The starting point is equality, but there can be a departure from that, in order to meet needs or to reflect other factors, such as assets brought to the marriage by one party. 

        This is a discretionary area of law, and outcomes will vary depending on the circumstances of the parties.

      • What is a Financial Agreement?

        A financial agreement is one which regulates how you divide your assets and deal with any income post-separation. 

        It is important that an agreement is formalised by a court order (called a financial remedy consent order), to make it binding.

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

        At any time following the issue of divorce proceedings, one party can issue an application at court for it to determine the financial issues between them. 

        This is called an application for financial remedies. The court sets down an initial timetable, including time for financial disclosure and leading to a first hearing. 

        During the court process, the court can make orders for assets to be valued (such as property and businesses) and for other experts to be appointed where needed, for example, to advise on how to divide pensions. 

        Once the disclosure and expert evidence process are complete, there is a negotiation hearing where the judge will attempt to assist the parties to achieve a settlement. 

        Only if the case does not settle at that stage (or at some other point in the proceedings), will the matter be set down for a final contested hearing where a judge will impose a decision.

      • When does the financial agreement have to be reached?

        The financial agreement can be reached at any time. However, the court only has the power to approve a final order (financial remedy consent order) once the decree nisi of divorce has been pronounced.

      • 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. Your financial claims remain open against each other even after the divorce has been granted if no final financial order has been made. 

        It is important to note that if you remarry before bringing a financial claim, this may prevent you (but not your spouse) from bringing claims, so it is vital to take advice if you intend to remarry before your financial claims have been resolved.

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

        This will depend on the circumstances. It is sensible to take advice before making any interim payments, especially if it is intended that these payments will form part of the overall financial settlement, so as to protect your position.

      • What is an Interim Financial Order?

        The court can make certain interim orders, i.e. orders made within the proceedings intended to last for the duration of them. 

        Most notably, the court can make orders for interim periodical payments (maintenance) to provide financial support to the financially weaker party to enable them to manage their outgoings whilst the proceedings are ongoing. 

        What is interim maintenance?

      • How are maintenance payments calculated?

        Maintenance is based on the needs of the receiving party, subject of course to the ability of the payer to meet them. 

        The court will consider whether the budget set down by the person seeking maintenance is reasonable, and the extent to which they can meet that budget from their income resources. 

        If they cannot, the court will then consider if it is appropriate for the other person to meet that deficit and if so, for how long.

      • Is it true that the wife always gets the house?

        No. The court has the power to order the sale of the property or the transfer to either party. Whether the property is retained by one or other of them will depend on all of the circumstances of the case.

        Who gets the house

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

        This often depends on the relationship between the parties. Some parties will elect to continue to run joint accounts for the duration of the divorce proceedings. 

        At other times, it is necessary to take steps to freeze or close accounts, to protect the balances and/or prevent one party from creating unnecessary debt. 

        As part of any financial settlement, joint accounts will usually be closed or transferred to one party.

      • What is the situation with pensions on divorce?

        Pensions are a unique asset. They are often treated like a savings pot, but the funds cannot be accessed unless the pension holder reaches a certain age.

        There are several ways to deal with a pension, including ‘pension sharing orders’ and ‘pension attachment orders.’ However, it is important to understand the implications, not just for today but for the future when deciding how to treat a pension pot.

        How are pensions split in a divorce?

      • What happens to endowments and life insurances on divorce?

        This will often depend on whether the policies have a surrender value or not. If they do, they will be taken into account as part of the overall division of assets and may be surrendered or transferred into one party’s sole name.

        If they are simply insurance policies, one party may elect to continue the policy, or they may be continued jointly for the benefit of the children, or the policy may be surrendered.

      • Are overseas assets taken into consideration?

        Both parties have a duty to disclose all assets held by them, whether in the UK or abroad, and the court will take into account all assets when deciding how to divide the asset pot. 

        Orders can be made against foreign assets such as property, but there may be further action required in that jurisdiction to enforce any orders. The court cannot, however, make a pension share against a foreign pension scheme. 

        More on international divorce

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

        As part of any final financial order, there will almost always be a capital clean break, meaning that neither party can bring further claims against the other for capital or pension provision. 

        However, a complete clean break is achieved when income claims against each other are also dismissed. This will depend on whether any ongoing spousal maintenance order is made.

        What is a clean break and why is it important?

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