Questions about getting a divorce?

We’ve got the answers.

Don’t worry if you don’t know what to expect from divorce. That’s what we’re here for.

Getting a Divorce – Your Questions Answered.

Q: How do I start a divorce?

A: To start a divorce, you or the solicitor representing you will need to complete and submit a divorce application through gov.uk. You can do this as a couple, jointly or as an individual. If a solicitor is managing your divorce on your behalf, you’ll need to pay their professional fees on top of this. You’ll need to have a few documents with you to submit the application:

  • Your husband or wife’s full name and address
  • The original marriage certificate or a certified copy
  • Proof of your name change if you have changed your name since marriage

In addition to these documents, you must also meet both of the following:

  1. Your marriage has lasted over 1 year
  2. You can prove 1 of the 5 grounds for divorce

The courts may reject your divorce aaplication if any of the details are incorrect.

If your partner has raised a divorce application and sends it to you, you don’t need to pay any application fees.

Q: How much does a divorce cost?

A: This will depend on a variety of factors. If you do everything yourself, you’ll only need to pay £593 to issue the divorce application. And that could be all that you pay if you are able to do everything yourself. However, normally other costs include:

Mediation – You must show you’ve tried mediation to have a court rule on your financial and child arrangements. If you can come to an agreement during mediation, you’ll still need the court’s approval to ‘seal’ the agreement. This means the agreement becomes legally binding. To finalise this, you’ll need to file for a financial remedy consent order at a cost of £53.

Child Arrangements – You’ll need to file a form C100 to get a ruling on child arrangements, which costs £232. There may also be your solicitor’s professional fees to consider on top of this.

Financial Arrangements – a financial order application costs £275 and covers how you divide your finances, property, upkeep for any children and pensions.

You can make informal child and financial arrangements with your partner for free. While this avoids the cost of going to court, you can’t enforce an informal agreement legally. This means you or your partner could choose not to honour your word at any time.

Q: Does my partner have to agree to the divorce?

A: No, but they can no longer contest a divorce as of 6 April 2022. The previous laws had one person submitting an application for divorce, citing their grounds for divorce based on their spouse’s behaviour, to which their partner would be able to agree to or contest.

Q: How long does divorce take?

A: In extremely simple cases that don’t involve any children or assets, getting a divorce can theoretically take as little as 4 months. However, in reality, things will take longer. If your divorce involves finances and children and you can’t resolve things informally, it could take up to 12 months. This will depend on whether or not the courts have availability. Usually though, divorce takes around 6 – 10 months for most people.

There is a minimum of 20 weeks between applying for a divorce and receiving your conditional order, and a minimum of 6 weeks between the conditional order and the final order.

Q: What reasons can I give to divorce my partner?

A: For any divorce to go ahead, you’ll need to prove your marriage has broken down irretrievably by illustrating one of the 5 grounds for divorce:

  • Adultery is when your spouse has sexual intercourse with a person of the opposite gender
  • Unreasonable behaviour is when your spouse has behaved in such a way that you cannot reasonably be expected to live with them. This is the most commonly used ground for divorce.
  • Desertion is when your spouse has left you for a period of at least two years immediately preceding the divorce application
  • Two years’ separation with consent is when you and your spouse have lived separately for two continuous years immediately preceding the divorce application and your spouse consents to the divorce
  • Five years’ separation is when you and your spouse have lived separately for five continuous years immediately preceding the divorce application. Neither party needs to consent to the divorce.

Q: Which grounds for divorce should I pick?

A: It doesn’t make much of a difference, but you should always pick the ground you can prove. If you think your spouse will object to seeing adultery written down, you can opt for unreasonable behaviour. The chosen ground for divorce is simply a means to an end, and in most cases, doesn’t mean much legally.

When it comes to children and finances, the ground for divorce tends to make little difference. However, there can be rare situations where they will affect the court’s decision. Unreasonable behaviour involving extreme domestic violence affecting one party’s ability to work is one such example.

Same-sex couples can only choose from 4 grounds for divorce and cannot choose adultery. This is because the legal definition of adultery is sexual intercourse with a person of the opposite gender.

Most people just want their divorce to be over and done with as quickly as possible. If this is your goal, pick the ground for divorce you think will cause the least controversy with your partner.

Q: Do I need a solicitor to manage my divorce?

A: Not always, but it’s advisable to get one if you have children and property. How complex a divorce gets mainly depends on 3 factors:

  • First, your relationship with your soon to be ex-partner. If you’re not on good terms, there’ll likely be lengthy arguments about who gets what
  • Second, whether you have children and/or property between you
  • Third, how difficult your partner is. This can indicate how easy or difficult it will be to reach a compromise.

Don’t underestimate the third factor as for many people, the cost of divorce comes from disagreements over finances. Using solicitors can help to separate emotion from the divorce process, and get you better and quicker results.

You don’t have to use a solicitor, but you’ll need to understand what you’re doing. That means drafting all of the paperwork and completing the applications for both child arrangement and financial orders yourself.

Courts won’t offer sympathy to you if you choose to represent yourself and your partner has a solicitor. Some judges might demonstrate kindness towards you, while you’ll simply annoy others.

Q: Are there any alternatives to divorce?

A: Yes. Couples from a strict religious background may not want to divorce due to the stigma attached. Judicial separation offers couples a way to divide their assets and children without having to go through a formal divorce. A formal application still needs to be made through gov.uk and it costs £365. The downside is that if you are legally separated, you’re still not divorced. This means you will still need to go through the divorce process to end your marriage further down the line.

If you’re not from a religious background there may be other alternatives to getting a divorce. You can choose to legally separate, work on the marriage or annull the marriage if you qualify.

If your marriage is less than a year old, your only option may be separation or annullment. This is because you won’t meet the legal requirements for divorce.

Q: How do we decide who gets what and who the children live with?

A: Divorce consists of three areas, and therefore three separate applications. The divorce application deals with formally ending a marriage, child orders deal with child arrangements and custody, and divorce financial orders deal with finances and assets. Each order is separate from the others, with separate fees payable. Submitting a divorce application does not automatically finalise your child and financial arrangements.

You can’t informally end a marriage and can only do this through getting a divorce. You can informally agree child and financial arrangements, however.

Q: My spouse is the main earner and I have limited funds to finance the divorce. What can I do?

A: There are lots of options to finance divorce. We don’t offer legal aid, however we can assist with applying for orders to help with the cost of divorce. Maintenance pending suit and Sears Tooth agreements are two options we can help you explore if your partner earns significantly more than you.

Q: How do we decide who our children live with?

A: You can choose to formally or informally agree on child arrangements with your ex-partner. However, unless a judge officially seals the agreements, informal arrangements are not legally binding. This means your partner doesn’t have to give you the children when they should, or vice versa. Often, this can cause problems years after the divorce itself.

If a formal child arrangement order exists, you can simply ask the court to enforce the terms. If you partner refuses, they could face financial penalties, community service or, in the most severe cases, imprisonment.

To have a formal child arrangement order approved, you’ll need to go through mediation. Mediators may also involve the children and ask them who they would prefer to live with, or to determine which parent can better provide for them.

Q: What if we agree on who our children live with, but not on how to bring them up?

A: ‘Specific issue orders’ and ‘prohibited steps orders’ allow and forbid certain decisions surrounding children after divorce. These orders determine things like:

  • A child’s education and where they go to school
  • Their religion
  • What type of medical treatment they receive, and
  • whether or not they are allowed to change their name

If one parent isn’t British, or has a home overseas, these orders can also prevent that parent from taking the child overseas permanently.

Form C100 covers child arrangement, specific issue and prohibited steps orders. This means you can apply for multiple child orders with just one form.

Q: Can one parent decide they don’t want anything to do with their child?

A: Yes, but they can’t escape from paying for their upbringing. It’s unusual for a parent to try to sever their parental responsibility, but it can happen. If it does, a child arrangement order allows the family court to look at what’s in the child’s best interests.

Many people would say that having contact with both parents is beneficial for a child, but it’s not always the case. If one parent makes it clear they don’t want any contact whatsoever, the court can rule in their favour. This is true if the impact of that rejection would negatively impact the child’s welfare and upbringing.

Q: Will the courts automatically rule that our child should live with their mother?

A: No, but this is a common concern for fathers. This may have been true in the past but it’s certainly not the case now. The family court places great emphasis on the welfare of a child and which parent is the primary caregiver. Normally, divorced parents share custody of their child, but who your child spends more time with is dictated by who the primary caregiver is. This can be the mother or the father.

Statistically, joint custody is still slightly skewed in favour of women, but this is due to socioeconomic factors rather than any bias of the courts. This is because women are still more likely than men to stay at home with the children.

These days, every case is treated separately. If a father spends more time bringing up their child than the mother, the courts will look favourably upon this.

Social services may intervene if you fundamentally disagree on joint custody leading to welfare concerns. However, it’s more likely child advisory services such as CAFCASS or NYAS will step in.

 

Q: How do we agree child maintenance?

A: The family court encourages couples to come to an informal arrangement between themselves for child maintenance. However, it also recognises this isn’t always possible.

If an informal arrangement is impossible, you can make an application to the Child Maintenance Service (CMS) at a cost of £20. Payments through the CMS are legally binding and the CMS has the power to enforce payments.

The CMS isn’t suitable for every divorce. Some exceptional family circumstances can benefit from making an application for a court order. These situations may include when:

  • Your partner’s income is significantly higher than yours and the CMS wouldn’t award what you consider fair
  • You have additional outgoings for things like education or your child has a disability that the CMS doesn’t take into account
  • Your ex-partner lives outside the UK and therefore the jurisdiction of the CMS

You’ll normally need to contact the Child Maintenance Service yourself to seek their help.

Q: How much should child maintenance be?

A: The Child Maintenance Service (CMS) provides guidance for basic levels of child maintenance and a child maintenance calculator to help tally the sums. These calculations can inform you of how much to pay within informal child arrangements. It will also form the basis of any orders the CMS makes. The calculated amount takes into account:

  • The payer’s income
  • The number of children there are
  • Child custody arrangements
  • Whether or not there are any children from other marriages
  • Contributions to miscellaneous costs such as school uniforms and activities

    Q: Can I change our child arrangements after they have been agreed?

    A: Yes. You can ask the family courts to vary an approved order if you or your partner’s circumstances change. If the change is in the best interests of your child’s welfare, the court is unlikely to block it. However, bear in mind that child arrangement orders are no longer effective once a child turns 16.

    Q: How much am I entitled to?

    A: This will vary depending on a vast number of factors. If you can’t agree informally on how to split your finances, the family court will look to split your finances depending on what’s fair for both sides’ needs. Most divorce financial settlements begin looking at a 50/50 split, but will increase or decrease depending on:

    • Each party’s needs, standard of living and current income levels
    • Which party has custody of any children, the children’s ages and what their requirements are
    • Whether one party has sacrificed their career or a lucrative income in exchange for looking after children or the home

    Your spouse’s behaviour during divorce proceedings rarely impacts the divorce settlement itself. It may, however, increase the amount you both spend on legal fees. The court’s main priority is that any financial settlement is fair and meets both sides’ needs. The court will try to ensure both parties are on equal footing after the divorce to allow you both to continue as you would have done financially during marriage.

    Q: How do we decide who gets the house and what about the mortgage?

    A: This depends on each person’s needs. The court takes into account a number of factors including the needs of any children, who the primary carer is and the incomes of each partner. Normally, the primary carer will keep the house if they can afford to run it, and it’s big enough for them and the children. However, this doesn’t mean the property won’t be sold. Mesher Orders can stipulate conditions of sale, for example when the youngest child reaches 18 or finishes university. You’ll both maintain any equity you hold in the property, as well as any mortgage responsibilities until it’s sold.

    The non-primary carer is expected to rent or buy another property if they have the means to do so. However, if they did not, it’s likely the court would order the sale of the marital to free up capital.

    If the family home is larger than the primary carer and the children need, the courts may order its sale. This frees up equity for both partners while allowing the primary carer to secure alternative suitable accommodation.

    Q: What happens to our pensions?

    A: Normally, pensions are split in one of two ways:

    By pension sharing order. This is where one partner moves part of their pension into a new and separate pot for the other partner.

    Or by pension offsetting. This involves an immediate cash payment to effectively offset any hypothetical future pension allocations or accruals.

    Remember getting a divorce is like a business negotiation in that you only receive what you ask for. Many people forget about pensions, or simply don’t know that they can be shared. A divorce solicitor will help you ensure you’ve taken all marital assets into account when finalising a divorce financial settlement.

    Q: Can my ex-partner take part of a future inheritance?

    A: Maybe. It’s possible for a divorce financial settlement to take into account future inheritances under certain circumstances. This is normally when the inheritance is imminent and the amount left is significant.

    Any inheritance received during the marriage will likely constitute a marital asset and split accordingly.

    Q: Am I expected to share personal belongings with my ex?

    A: Maybe. Most couples will agree a split of assets and belongings during divorce based upon each person’s individual needs and, to a certain degree, their attachment to any belongings. Smaller assets like furniture are typically easier to divide than things like cars, expensive appliances or antiques. However, if things descend into a tit-for-tat situation where each side is weaponising assets, things become infinitely more difficult.

    If the court needs to intervene, they will normally ask for a ‘Scott Schedule‘. This schedule sets out all the marital assets and their values. The judge will then split these according to each side’s needs.

    Q: Is my partner entitled to things that I owned before we married?

    A: Maybe. Solicitors and divorce advice services talk a lot about ‘mingling‘ of assets when it comes to divorce. Your assets fall under two categories during the process: matrimonial and non-matrimonial. Matrimonial, or marital assets are those gained during marriage. And non-matrimonial, pre-marital or post-marital assets are those from outside of your marriage. They can be from before or after you married. Divorce financial settlements take into account everything acquired during marriage, but can include pre-marital assets too.

    You can request that a judge excludes any pre-marital assets from your financial settlement, but they will consider two things:

    • Whether the pre-marital assets ‘mingled’ in any way with marital assets. By mingling, the pre-marital asset, or part of it, might become a marital asset. For example, using part of an inheritance to put down a deposit on a family home could draw the inheritance into question as a marital asset.
    • If after splitting the marital assets, one party’s needs are still unmet, pre-marital assets may be considered.

    Q: After we come to an agreement, can my ex claim any further finances or assets?

    A: Maybe. If you want to ensure that your ex can’t make a claim on future assets or finances after your marriage has ended, you must ensure that you get a ‘clean break order‘. A clean break means that both you and your partner agree any financial settlement is final. It also means that neither side can pursue the other for finances after the divorce. It effectively severs your financial connections.

    If you don’t get a clean break order, your ex could potentially file a claim years down the line. One often quoted example is that of Nigel Page who won £56 million in the Lottery in 2010. He divorced his wife 10 years prior to his good fortune, but his wife was still able to file a claim and ultimately walk away with £2 million.