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divorce FAQ - frequently asked questions
I have ordered your services
- what happens next?
Take a look at our interactive
divorce guide here to see the divorce process in an easy to understand
timeline.
How long does the divorce
process take and what is involved?
The normal divorce takes between 4 and 5 months. For what is involved
have a look at "our service" section on this web site.
What are the likely costs?
Currently the court fees are £300 when you file the divorce petition
with the court and £40 when you apply for your final divorce decree, the absolute.
For our fees have a look at 'the cost' section on this web site.
How long do I have to be
married before I can get a divorce?
1 year.
Which court will deal with my divorce?
If the divorce is going to take place in England and Wales, any
County Court has the power to deal with divorces.
All the divorces that we deal with under our full case management service are filed in Central London in the Divorce Registry. We find our clients prefer this for a variety of reasons for example to avoid the possibility of their divorce becoming common knowledge locally. The Principal Registry in London is used by many who do not live there, for a mixture of all of these reasons or perhaps they believe that that court will handle their case better.
What are the grounds for a divorce?
Since 1968 there has been just one ground for divorce - irretrievable
breakdown of marriage. However, you have to prove irretrievable breakdown
in one of five different ways. These are: adultery, unreasonable behaviour
(often described as cruelty), desertion for two years, separation for
two years where the other party consents, and separation for five years
(no consent needed).
Is the current law going to change?
Legislation passed in 1996 was to go some way towards removing
dispute in the divorce process by ending the concept of 'fault' in divorce
cases. However, the Government has since announced (commentators say on
the grounds of cost) that those parts of the Act dealing with divorce
will not now be implemented.
We will therefore be left with the present system with little prospect of change in the near future.
Does it matter who takes out the divorce?
There are some disadvantages in being the one who is divorced.
You can be ordered to pay the costs i.e. the legal fees and court costs.
The general legal rule is if you prove your case then you are awarded
costs against the other party. This is often shown to be unfair in matrimonial
cases. You can get around the costs problem by agreeing at the outset
who pays what. Assuming you use one of our fixed price services you will
know exactly what your divorce costs are going to be.
Secondly, if the other party uses the unreasonable behaviour ground you will receive divorce papers alleging bad behaviour in your private life which is often taken out of context and sometimes completely untrue.
Thirdly if one of the allegations in the petition relate to dealing with the children or to financial issues and the divorce is granted without challenge then those allegations become a finding of fact. These findings can be referred to in proceedings relating to children or finance.
All the above problems can be resolved by co-operation. For example if the behaviour ground is used we often suggest the parties agree on a draft of the divorce papers before they are made official.
Do I have to agree all
financial matters before I start divorce proceedings?
No, you do not - but it is a good idea to do so. If you ignore the financial
issues and remarry, you may lose the right to have the matrimonial financial
affairs reviewed by the court. Many people do not realise that your ex.
can make a claim against your estate after you die. There are special
rules, and a claim will not succeed in every case, but it is wise to get
an agreement on finances and if appropriate obtain a 'clean break' order
(see our divorce and money section).
To see our information - financial settlements
section click here. If you and your spouse cannot agree on financial
issues you may want to consider our financial
mediation service.
Should I close our joint banking accounts at the
outset?
Many couples do not make any changes to their banking arrangements until
financial negotiations are well advanced.
But if there is a risk that large sums may be drawn out - or if there
is a risk that credit or charge cards may be used inappropriately - then
it may be safer to take action to prevent this.
The danger is that if an account or credit card is suddenly frozen, solicitors may be involved immediately to ask for maintenance arrangements to be set up - perhaps through the courts. This may be an unforeseen and costly consequence.
Much depends on whether you can trust each other enough to leave things as they are. If you need to rearrange the accounts on separation we recommend that you try to agree those changes first. Think about mediation.
Is a 50/50 split the usual financial settlement?
You may have read in the papers about 'big money' cases - where
the assets available for division clearly exceed the parties' needs -
have focused on the concept of equality of outcome. Contributions to the
running of the home and the bringing up of children are valued equally
by the court on divorce to contributions made by earned income. There
may be other considerations - for example, the liquidity of the assets
making up the family pot, or any inheritances received, or particularly
bad financial conduct on one side, which dictate that the outcome should
not be equal. Fairness is what the court will try to achieve - and a 50/50
split may not be fair in all cases.
Each case has to be looked at individually. It depends on the circumstances
of those involved.
In most cases, the financial settlement will reflect what each person needs fundamentally, money to pay all the bills and to sort out somewhere to live.
A 50:50 split is often the starting point, but many factors
have to be taken into account.
Do I have to agree all
arrangements for the children before divorce proceedings?
As with financial issues, you do not have to agree everything regarding
the children but it would be a good idea to do so. To get your divorce
you have to show that the arrangements for the children are satisfactory
or the best that can be devised in the circumstances. In the context of
divorce proceedings you can apply for orders relating to the finances
for the children and orders relating to residence and contact but the
court is reluctant to grant such orders unless it is absolutely necessary.
You will have to show why it is impossible to agree.
Where will the children live?
Married parents share joint parental responsibility and come before
the Court as equals. The children's welfare is the court's paramount consideration.
If there is a dispute as to with which parent the children should live, the court must decide one after either parent issues a formal application to the court for a residence order. In considering which parent is best able to meet the child's best interests, the Court will apply the "welfare checklist" (s1(3) Children Act 1989).
• Who is best able to meet the child's day to day needs?
• What has the domestic routine been in the child's life to date?
• Even if there is little to choose between the two parents in
terms of their actual parenting skills, are the work commitments of one
more conducive to having primary care of the children? This last consideration
is often fundamental and traditionally, has tended to work in favour of
mothers, but increasingly, this need not necessarily be the case.
• Even where one parent does have a Residence Order in his or her
favour, that does not alter the fact that the other parent retains parental
responsibility and has an important role to play in the child's life.
In theory at least, a Residence Order is not a passport to making important
decisions about the child's upbringing on a unilateral basis.
• In the case of unmarried parents, the mother has sole parental responsibility until the father acquires it by way of an agreement, or Court Order. He will however be granted parental responsibility automatically if he has a Residence Order in his favour.
• In the case of very young children, it is a fact that courts tend to assume they are better off living with their mother unless clearly shown to the contrary. Nevertheless, there is no presumption of law and the courts have to consider each case on its individual merits. Although the odds may seem stacked against a father, the facts may mean that this is not necessarily the case.
What happens if I do not
know where my spouse is living?
You must make reasonable enquiries to locate your spouse and if
you still cannot get the address then you can apply to the court for an
order that service be dispensed with. We can show you how. Just e-mail
if you need this service.
What happens if my spouse
refuses to acknowledge receipt of the divorce papers?
You can arrange service by the court bailiff. We can show you how.
Just e-mail if you need this service.
Does it make any difference
if we were married abroad?
No, but if the marriage certificate is in another language then you need
to obtain a notarised translation.
Does it make any difference
if either or both of us are foreign nationals?
No, provided either of you are habitually resident in England and Wales.
There are complicated rules and if you are unsure please e-mail us.
Does it make any difference
if either of us are resident abroad?
No, provided the other is habitually resident here.
Can I rely
on my own adultery for a divorce?
Afraid not, in this circumstance you will have to ask your spouse
to divorce you.
If I want to rely on my spouse's
adultery after we are separated will it still count?
Yes.
Can I still take divorce
proceedings on the grounds of adultery or unreasonable behaviour even
if we continue living together?
Yes, provided that, prior to the date your divorce petition is presented
to the court, you have not lived together for more than six months.
If we want to use the
ground of separation by consent, do I have to get my spouse's consent
before I start the divorce action?
No, your spouse will be given an opportunity to consent on the acknowledgement
form when he/she receives the papers from the court.
What happens to my house if I die?
You need to check the way in which your home is owned. Is it in your sole
name? If it is, it will pass under the terms of your will or intestacy
(the statutory rules where someone does not leave a will).
There are two ways of owning a home jointly.
Many couples own their home as joint tenants, which means in such a way
that if one of them dies, the other owns the property outright automatically.
Alternatively they may hold the property as ‘tenants in common’
which means that when one of them dies their share will go to the beneficiaries
named in their will or the statutory heirs on an intestacy.
The decree absolute of divorce automatically alters your will in so far as it relates to the other spouse. It is important to consider changing your will at that stage in any event.
We advise all our divorce clients to make a new will after the divorce, often they make tow one on separation and before a financial settlement has been implemented and the other after the decree absolute. We offer special terms to our divorce clients and for your individually prepared will we charge £75.
What happens to the children if I die?
Where both parents have parental responsibility, i.e. they are married
or if unmarried the fathers name is on the birth certificate or he has
entered into a parental responsibility agreement. In the event of the
death of one, the surviving parent will retain sole parental responsibility.
The exception to this is where the parent who died had a Residence Order in his or her favour, in which case, any testamentary guardian appointed in the deceased parents Will automatically assumes Parental Responsibility jointly with the surviving parent.
If there is a dispute between those with parental responsibility as to with whom a child should live, then only the court can decide and an application for a Residence Order needs to be made.
Can I change my child's surname?
For more information on this topic have a look at our sister website
www.changing-names.co.uk.