Note, you cannot begin the divorce procedure within the first year of marriage.
There is only currently one “ground” for divorce: that being that the marriage has completely broken down and any reconciliation is impossible.
At present the Government has not updated the law to allow for “non-fault divorce”
In an undefended divorce the grounds will have to be proven to the court by giving written evidence and the person starting the divorce process (the petitioner) will need to establish one or more of the following five facts:
- the respondent (the other spouse) has committed adultery (this can include sexual relationships entered into after separation);
- the respondent has behaved unreasonably (the ‘seriousness’ of this behaviour is less important than the effect it has had on the petitioner);
- the respondent has deserted the petitioner for two years or more (this is very rarely used as grounds for starting divorce proceedings);
- the couple have separated and have been living apart for two years, and the other spouse gives consent to start divorce procedures; or
- the petitioner has lived apart from the respondent for five years or more (in this case, no consent is needed from the respondent)
If there are financial proceedings or proceedings relating to children, these will run separately (but usually will run concurrently).
The first step in the divorce process is to file a petition form in court. This can be done online and the application must contain information about your marriage, any children in your care and your reasons for divorcing.
Once the court issues the petition, and it is sent to your spouse, you will then become the petitioner and your spouse becomes the respondent.
When your spouse receives the petition, he or she will have to file what is called an “Acknowledgement of Service” form. This document confirms that the petition has been received and provides certain information to the court. For example, it says whether the divorce is opposed or contested.
A divorce is a largely an administrative process, provided the spouse being divorced does not defend it.
In most cases, the procedure should then be completed in four to six months.
After the respondent has sent back the Acknowledgement of Service form to the court, the petitioner then applies for the decree nisi. This is done by preparing a formal statement, in which various questions have to be answered. As with all divorce documents, this statement is in a prescribed form.
When the decree nisi is applied for by the petitioner, the court lists it to be pronounced. The decree nisi is the first decree of divorce. It means that the papers are accepted by the court, and that the grounds for divorce have been approved by a judge.
The decree nisi does not mean that the marriage has ended. That only happens on decree absolute.
There is a minimum period of a clear six weeks after decree nisi before the decree can be made absolute.
In some situations, it is possible for the decree absolute to be held back until the financial issues have been finalised. For example, if you are getting divorced on the basis of separation for two or five years, you can specifically ask for the final decree to be postponed until the finances have been dealt with. This is because divorce proceedings are complete and the marriage is formally over once the decree absolute is pronounced. This means that you would no longer be a widow or widower and might lose out on some pension entitlements if your former spouse dies.
Often, even where the divorce is not based on one of the separation grounds, there will be an agreement not to finalise the divorce process until after the finances have been resolved.
If there is no reason to hold the divorce up and the petitioner does not apply for it, the respondent can make his or her own application three months after the earliest date that the petitioner could apply. That will result in a hearing being fixed if agreement cannot be reached beforehand.
In every case, there are court fees to be paid, which are currently £550 for the filing of your petition. Even if you do the divorce yourself, you will still have to pay the court fees.
If you ask us to help you with your divorce, there will be our legal fees on top of the court fees.
However, it’s important to remember that some divorce proceedings are very complicated. Every family is different, and separation and divorce will often throw up complex and difficult issues in relation to finances and children. There may also be difficulties about the evidence needed to get the divorce. There may even be more than one country in which a divorce can be filed.
If your financial position is complicated, involving pensions or business interests then you will need highly specialised advice – and getting help from experts in these types of issues will help to keep the costs down and help you protect your assets.
More complex cases will require more time spent on them and it may be difficult for us to set a fixed fee. In these circumstances, me may have to charge for the amount of time spent working on your divorce.
Our rates are highly competitive and we offer fixed prices for divorce services where clients have taken advice from us and the terms of the divorce are agreed.
If you are disputing the divorce it is may not be possible to give a fixed fee, we will give you an estimate as to what we think your divorce costs will be.
What are the main financial issues during divorce?
Sorting out money is, for most couples, the most daunting part of separation and divorce.
You can do much of this yourself, and that will help to keep your legal fees right down.
As well as getting info on your finances, you will need to think about how you are going to talk through the divorce financial issues with your partner in order to best reach a fair and desirable financial settlement.
The financial issues to consider during a divorce will differ from family to family. We recommend that you focus on the following topics:
- Immediate financial concerns after separation – how do you make sure that you can keep things going financially, without getting into debt?
- Maintenance after divorce – how much should be paid and for how long?
- The family home – does it have to be sold?
- Savings and pensions in divorce – what happens to these?
In divorce, who gets the house?
The family home tends to be the central concern when considering the capital resources of a family.
Because of this, in divorce settlements, your house is often one of the first things to be sorted out
Many families, after a long marriage, will try to make financial resources stretch as far as possible. This way a new home can hopefully be bought and the original home can be kept. Often the new home will be purchased using joint family resources.
In these situations, the level of mortgage on a home will have a considerable effect on how things turn out. It is often crucial to seek independent financial advice from a specialist who understands issues arising on divorce.
For some couples, particularly if there are no children and it is a short marriage, it will just be a question of selling the home and dividing the proceeds either equally or otherwise. If one of you has brought money into your marriage, or had a flat or home to start with, then the position should be adjusted in order to make it fair.
For families with children, it is a question of trying to disrupt them as little as possible during the divorce, while ensuring that a second home can be bought for the other spouse. Property division in divorce needs to take into account the fact that children require a ‘family home’ with each parent.
The fact that a house is in your name after divorce will not have any bearing on who gets the house.
Property rights in divorce are worked out in exactly the same way as pensions and savings accounts – in other words, your property is considered to be part of your ‘marital assets’. Divorce settlements hinge on the total value of these assets, which includes all assets in either joint or sole names.
Your house will likely make up a considerable portion of the value of these assets, but ownership of a property in divorce will not play a part in a divorce settlement. Ownership of a property can, however, show that the property was ‘pre-acquired’ or brought to the marriage by one spouse. It can be important to show what was brought to the marriage in some cases.
The exception is if you can prove, with a prenuptial agreement, that the house is not a product of your marriage partnership.
The first thing to do is work out what financial resources you can put towards housing. For most people this will be a number of things:
- Your savings and shares
- The equity in your house (in other words, its value less the mortgage and the sale expenses)
- Whether you can increase the mortgage or take out a new mortgage on a new property
It is worthwhile finding out what you may get after divorce for selling your house. You may be able to ask an estate agent what the home would sell for. You could ask two or three estate agents to let you have a price guide. This should not cost you any money, though a formal valuation will.
Then you need to find out what your mortgage is – how much do you still owe? After a divorce and a house sale – and after paying off the selling expenses (estate agent’s fees and conveyancing fees) – what would you be left with?
It’s certainly not inevitable that the Court would order that a property is sold, but divorce and house rights can be very complex, and the answer depends very much on your circumstances. Every case is different.
Various factors are considered when determining whether a house sale is necessary – and not only financial factors. It may not be in a teenager’s best interest, for example, to have their living situation disrupted before their exams. In a divorce property settlement, the needs of your children will always be a consideration, so it makes sense to follow this approach in your own discussions.
If the majority of the housing capital is being employed to house you and the children, then it can be the case that there will be a charge placed on the property after divorce – a cash sum that your spouse would receive later on. For example, if it is felt best that you and two children should stay in the house after divorce, then your ex might receive his or her share of the housing capital when the younger child finishes A-levels or university. You may be able to arrange to pay back some of the capital tied up in the house at a later stage.
Other financial resources will come into play in these situations – as well as the potential for you and your spouse to borrow money.
How should pensions be divided on divorce?
When and how pensions are divided on divorce depends on the circumstances of you and your family. If your marriage has been short and both of you are in your twenties or thirties, then your pensions may not need to be divided formally at all, although their value may still be taken into account in other ways.
If you and your partner are in your 50s, pensions are likely to play a far more central part in your negotiations or the decision a court has to make. It will be necessary to look at them within the overall context of your family finances and you will need to think about certain key questions:
- What is the earliest date that you can take the pension (this varies generally between big company final salary schemes and private pensions) and when are you actually likely to want to retire?
- What capital sum or income will each of you be able to get from your existing pensions in retirement?
- What expenditure do you think you will have when you retire, i.e., how much do you think you will need?
- Are there other savings that can be used to meet your retirement needs?
If you need help with your divorce call us on 01207.654365