Divorce is never easy, but it’s easier when you have the right team by your side. That’s Stowe Family Law.
Here, we work hard to make family law easier to understand and know that each case is unique – each one needing tailored support and handled with care.
We guide our clients through the divorce process with empathy and care and the reassurance that they have the right team of people by their side.
We pick up the conversations that our clients cannot face and, with our extensive experience in divorce, give people the details they need to make any difficult decisions along the way with confidence.
With our support, clients navigate through the divorce process and move forward in life with a renewed strength.
Our 80 plus lawyers can help with all divorce matters, including applying for a divorce, reaching a financial settlement, be it the divisions of assets, what happens to the family home, pensions or maintenance payments.
Our specialist child law team helps parents to resolve their issues and clarify arrangements for their children.
At times, reaching an agreement can be difficult, but with our professional legal support from the beginning and holistic approach, over 81% of our cases settle out of court.
A divorce is the dissolution of marriage through a legal process by filing an application in a court of law. Once a couple has divorced, they are no longer legally married; however, there may be legal contracts set in place such as maintenance orders and child arrangements orders that they must still adhere to.
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.
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.
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.
England and Wales operate a no-fault based divorce system which means that you do not have to provide a reason for the breakdown of your marriage, just a statement that your marriage has irretrievably broken down.
What is a 'divorce application'?
A divorce application, otherwise known as form D8, marks the start of your divorce process.
You can apply for a divorce by yourself (sole applicant) or make a joint application with your ex-spouse (joint applicants).
Alternatively, if you receive a divorce application from your spouse, you are called the respondent in the legal process.
You can submit your application online via a court portal or make a paper application. Both require payment of a court fee of £593 (correct at time of publication).
What if my spouse refuses to accept the divorce?
It is very difficult to stop divorce proceedings from continuing.
It is possible to dispute proceedings, but the reasons for doing so are limited and generally have to do with the validity of the marriage and whether it was celebrated according to the correct procedure.
What happens if my spouse refuses to acknowledge the divorce application?
Someone refusing to acknowledge a divorce application can be extremely frustrating. However, there are several options open to you if your spouse does not respond.
Once the divorce application has been filed, the court sends out a copy of the application and an Acknowledgment of Service form to the respondent (your ex-spouse).
They are given 14 days to complete this and return to the court. This confirms to the court that the respondent has received the application.
If there is no cooperation from them, you can have the application personally served.
A court bailiff can arrange this (if you do not have legal representation) or a Process Server (if you have a solicitor acting for you). They will physically serve the documents to your spouse at their address or an alternative address, like their work address.
Once personally served, you can proceed whether they cooperate or not.
What is a conditional order?
The conditional order is a certificate that says the court doesn’t see any reason you can’t divorce or separate. It is often referred to as the “first stage” in the divorce process.
However, the conditional order 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 at this stage.
What is a final order?
Six weeks after the granting of a conditional order, you can apply for a final order.
This is the last stage of divorce and legally ends your marriage or civil partnership.
You should keep your final order as you may require it if you remarry or change back to your maiden name.
There are significant implications of the final order, and it is best to finalise any financial settlements before applying for a final order.
If you do not apply for a final order within 12 months of getting the conditional order, you will have to explain the delay to the court.
How long does a divorce take?
On average, the divorce process in England and Wales takes six-eight months.
Within the process, there are two key waiting periods.
First, there is a 20-week cooling-off period after the court has issued the application before the conditional order can be granted.
Second, once the conditional order has been granted, there is a six-week waiting period until you can apply to the court for a final order.
In addition, several factors can also impact the length of a divorce, including a lack of cooperation by one party, complicated financial matters and/or child arrangements and delays at divorce centres and family courts.
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 £593 to process the divorce application. In an average divorce, when a divorce 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.
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 £593.
It is, however, possible to file the divorce yourself via the online divorce process, which will then avoid incurring the divorce 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.
The general rule on who pays the legal fees in a divorce is that each person getting divorced will pay their legal costs.
The cost of a divorce includes the court fee (currently £593) and the costs of the solicitors who assist the parties with the divorce process if they are instructed.
The person applying for the divorce (the applicant) will be responsible for covering the court fee. If the application is a joint one, applicant 1 will pay the court fee.
The applicant or joint applicant can ask the court to make an order that the other party pays their legal costs relating to the divorce or request that the costs are divided equally, or just the court fee is shared.
However, it is necessary to make a separate application to the court to ask for a costs order, and for this reason, they are rarely sought.
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.
No, you cannot use the same divorce 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 divorce solicitors.
Will getting divorce law specialists involved in a divorce make things more hostile?
Not at all.
We would recommend both parties instruct divorce 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.
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.
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 divorce lawyers. It is usually important to each have independent legal advice alongside the mediation process.
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.
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.
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.
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.
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.
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 conditional order 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.
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.
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.
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.
There is no right or wrong way when it comes to divorce and separation. The cycle of emotions can be overwhelming, leaving you feeling emotionally vulnerable, changing your life from what is familiar to what is unknown. At Stowe Family Law, we understand the stress and upset that this can cause. We are here to support you through this journey with empathy, compassion, and expertise. We understand that every family is different, we take the time to listen and understand what is important to you and get the right approach and lawyer for you. In choosing Stowe, you can access the largest specialist team of family lawyers in the UK, the very best advice and guidance, the strength and confidence needed for the challenges ahead, by your side throughout.