Obtaining a Divorce
irretrievable breakdown of marriage
If you want a divorce you will have to show to the Court that your marriage has irretrievably broken down. To satisfy this you can rely on one of five facts:
· That your spouse has committed adultery and you find it intolerable to live with your spouse
· That your spouse has behaved in such a way that you cannot reasonably be expected to live with your spouse (often known as
· That your spouse has deserted you for at least two years
· That you and your spouse have been separated for two years and your spouse agrees to a divorce
· That you and your spouse have lived apart for a continuous period of five years
The three main stages in the divorce process
You need to send a divorce petition to the Court. The petition sets out the details of your marriage and the reasons for the divorce. In the petition you may seek to claim your legal costs from your spouse. You will also have to send your marriage certificate and court fee (currently £550). The Court will send the papers to your spouse with an “Acknowledgement of Service form” to complete, which should be returned within 7 days. The form asks whether your spouse will defend your petition. If your spouse returns the form and does not indicate an intention to defend the petition you can move to stage two.
You will need to complete a statement confirming to the Court that the contents of the petition are true (or whether anything has altered) and that your spouse has received the petition. The Court, if satisfied with your petition, will certify that you are entitled to a divorce and set a date to pronounce your decree nisi. You will not need to attend Court when your decree nisi is pronounced, unless costs are in dispute.
Six weeks after the decree nisi has been pronounced you may apply for the decree absolute. The decree absolute will dissolve the marriage. Again, you do not need to attend Court. In some cases you may be prevented from applying for a decree absolute. It is general practise that if the financial side of the divorce is not settled, then the petitioner will choose to delay the application for the decree absolute.
When you decide that your marriage is at an end you should consider whether you need to make a Will (if you don’t already have one), or whether you need a new Will. If you don’t, your spouse may end up benefiting from your estate even if you don’t want that, or it could mean that you would be partially intestate. Linked to this, you may need to change the way you hold any jointly owned property if you wish to deal with it in your Will.
This guide is for general use only. It is not intended as a comprehensive account of the law and the content may not apply to your particular case. Please do consult us about your own circumstances by contacting us to arrange a free initial consultation.
DIVORCE - Dividing the Assets
Once you have decided that your marriage is at an end you will want to know how the assets of the marriage will be divided.
Most divorcing couples do manage to settle the issue of who will have what either amicably between themselves or with the help of solicitors or mediators. The purpose of mediation is to encourage communication in an attempt to resolve differences in respect of finances and children.
The advice given to divorcing couples by solicitors and mediators is based upon what the court is likely to order if the court were to decide the case. There is actually no need to go to court if everything is agreed as the agreement can be confirmed by way of a paper exercise leading to a binding court order – a “Consent Order”. If agreement cannot be made either party may make an application to the court. Even after a court application is made the parties are still encouraged to reach agreement and an agreement can be made at any time.
If you are getting a divorce you are advised to have a court order confirming the financial arrangements, even if you manage to agree things without needing to formally apply to the court. Such order will set out how the assets will be divided and whether there is to be any maintenance or not.
What can the court order?
Upon divorce the court can order maintenance payments (known as “periodical payments”), lump sum payments and property adjustment orders (e.g. sale, or transfer of a property to your spouse or vice versa). It may also make a pension sharing order or pension attachment order. Before the divorce is finalised the Court may order interim maintenance. Upon divorce, the Court may order that each party has no future obligation to each other – this is commonly called a “clean break”. The Court no longer deals with child maintenance. Generally, this is dealt with by the Child Maintenance Service, unless there are exceptional circumstances, the parties are very wealthy, or the parties agree a suitable level of maintenance, which they may embody in a Family Based Arrangement – an informal record of their agreement.
What will the Court order?
There is no fixed formula to apply that will enable this question to be answered. When looking at what order to make, the Court has a duty to look at a number of factors and exercise its discretion in each case. The first consideration of the Court is the welfare of any children of the family who are aged under 18. The factors the Court will look at are:
· The income, earning capacity, property and other financial resources that each party has or is likely to have in the foreseeable
· The financial needs, obligations and responsibilities of each of the parties
· The standard of living enjoyed by the parties during the marriage
· The age of the parties and the duration of the marriage
· Any physical or mental disability of either of the parties
· The contribution each party has made to the marriage and the welfare of the family
· The conduct of the parties (in the main, this relates to financial conduct)
· What losses the parties will incur as a result of the marriage being dissolved (e.g pension rights)
· Any other factors which it would be unfair to disregard. This would, for example, include the existence of a pre-nuptial agreement.
The court procedure
Prior to any application, there is now a requirement to consider mediation. There are some exceptions in certain circumstances, but otherwise it will be necessary to at least attend a MIAM – a Mediation Information and Assessment Meeting. Mediation may then follow and be successful. If not, then the mediator will provide a certificate, which is appended to the application being sent to the court.
Application to the Court
This is made on Form A, which sets out what you are applying for. Once this is lodged with the Court (along with the required fee – currently £255) it starts a strict timetable for the running of the proceedings.
Each party is under a duty to the court and to each other to truthfully and fully disclose their financial circumstances, including details of their assets, income and expenditure needs. This, in the main, is through completion of a Form E (financial statement) which must be sent to the court by the deadline fixed for this purpose (approximately two months from the date of the issue of the proceedings). You will have to attach evidence of your assets, for example, P60’s, pay slips, bank statements and pension information. Each party then has to prepare certain documents, including a Statement of Issues and, if necessary, a questionnaire asking further questions about the content of the other party’s Form E and accompanying documents.
The First Appointment
This is the first Court hearing in the proceedings and it is mandatory for all parties to attend. A District Judge will consider the application and give any orders for documents or evidence considered appropriate and still required. It is still possible at this stage for the parties to have negotiations to attempt to settle matters.
Financial Dispute Resolution Appointment (FDR)
This is the second Court hearing. The purpose of this hearing is for discussion and negotiation and is intended as an attempt to reduce costs incurred in going to a full hearing. Everything said is ‘without prejudice’. This means that if the parties cannot reach agreement anything said will not be
binding nor repeated at the final hearing. Parties are encouraged endeavour to treat the First Appointment as a Financial Dispute Resolution appointment if all information and documents are to hand..
Each party, throughout the proceedings, should consider making offers to settle if appropriate.
The Final Hearing
If no agreement has been reached, the case will be heard by a District Judge at a Final Hearing. The hearing is private. Only the parties and their representatives may attend, although occasionally an expert may be called to give evidence, such as regarding business or property valuations. Each party’s representative will cross examine the other party and if appropriate, any witnesses. The District Judge will listen to the evidence, ask questions if necessary and then make a final order.
The Court has the power to make costs orders where appropriate. This means that the party who is subject to a costs order will pay not only their own costs, but some of the other party’s costs as well. If a party does not comply with the strict deadlines or flouts the rules of conduct of the proceedings in a way which is deemed to be disproportionate, the Court may make a costs order against that party.
DIVORCE – Financial Remedy Issues
There are two ways of getting a Court order concerning finances on divorce. One way is by agreement. The parties negotiate and arrive at a settlement. This is then drawn up in an order and is called a Consent Order. This is sent to the Court and put before a District Judge for his or her approval. The second way is by issuing court proceedings and you will then have a timetable to follow. An agreement may be arrived at during the proceedings, in which case, a Consent Order will be made. If not the District Judge will ultimately make an order at the Final Hearing.
Application to the Court
This is made on Form A and you have to state what you are applying for. Once this is lodged with the Court (with the necessary fee of £255) it starts a strict timetable for the running of the proceedings.
You will be required to complete Form E (a financial statement) and send it to the Court by the deadline set by it (approximately two months of the date of issue of the proceedings). Form E is the principal document by which each party informs the Court of their assets, income and expenditure needs. You will also have to attach evidence of your assets, for example, P60’s, pay slips, bank statements and pension information. Each party is under a duty to complete the Form E fully and honestly and a Statement of Truth at the end of the document must be signed. Each party then has to prepare certain documents including a Statement of Issues, a chronology (setting out key dates) and (if necessary) a Questionnaire to serve on the other party two weeks before the First Appointment.
The First Appointment
This is the first Court hearing in the proceedings and it is essential that all parties attend. The District Judge will consider the application and make any directions for documents or evidence he or she thinks are still required. It is possible at this stage still for the parties to have negotiations to attempt to settle matters between them.
Financial Dispute Resolution Appointment
This is the second Court hearing. The purpose of this hearing is for ‘discussion and negotiation’ and is in the hope of reducing costs incurred in continuing to a full hearing. Everything said is ‘without prejudice’. This means that if the parties cannot reach agreement, anything said will not be repeated at the Final Hearing. The same District Judge will not sit at the Final Hearing and a different Judge with no previous involvement in the case will be allocated.
The Final Hearing
If no agreement has been reached the application will be heard by a District Judge. The hearing is private and only the parties and their representatives may attend. Each party’s representative will cross examine the other party. Occasionally, expert witnesses, such as accountants or valuers, may give evidence too. The District Judge will listen to the evidence, ask questions and then make a final order