Getting a Divorce

Frequently Asked Questions

Don’t worry if you are considering or going through a divorce and have no idea what it involves.

Britton and Time Solicitors has the answers.

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 petition through gov.uk. The application costs £550 and if your solicitor is managing your divorce on your behalf, you’ll need to pay them 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
  • Your original marriage certificate or a certified copy
  • Proof of your name change if you have changed your name since marriage

You must ensure all the details are correct when submitting your divorce petition or it may be rejected.

If your partner has raised a divorce petition 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. At an absolute minimum, a divorce petition costs £550 to be issued, but this fee can be reduced if you are on a low income. Other costs include:

Mediation – if you opt for mediation then there is a cost attached to having a mediator or mediation service oversee your discussion. This can sometimes be covered through legal aid if you qualify. To have a court rule on your financial and child arrangements, you’ll need to demonstrate that you’ve been through mediation and have a consent order approved by a judge for £50.

Child Arrangements – a form C100 costs £215 and is the form used if you and your partner need the court to rule on your child arrangements. There may also be your solicitor’s professional fees to consider on top of this.

Financial Arrangements – a financial order application costs £255 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 and avoid the cost of having formal orders approved, but you or your partner won’t be legally bound by your agreement and could choose not to honour their word at any time.

Q: How long does divorce take?

A: For straightforward divorces that don’t involve any children or assets, the fastest a divorce can be approved is in 4 months. If finances and children are involved and can’t be resolved informally, timings will be affected by when a court hearing is available which could take up to 12 months.

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

A: Not necessarily, but you do have to prove that they have been served with the divorce petition or that you have tried everything possible to serve them with papers. Once papers have been served, you can move ahead with the divorce regardless of whether or not your partner agrees to it.

If you partner receives the divorce petition but ignores it or pretends to ignore it, as long as there is proof it has been delivered, your divorce can go ahead. This could either be proof of delivery, or even comments on social media that reasonably indicate they have received the petition.

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

A: There are a total of 5 grounds for divorce and you must choose and be able to prove one for your divorce to go ahead. The grounds for divorce are:

  • 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
  • Desertion is when your spouse has left you for a period of at least two years immediately preceding the divorce petition
  • Two years’ separation with consent is when you and your spouse have lived separately for two continuous years immediately preceding the divorce petition and you or your spouse consent to the divorce
  • Five years’ separation is when you and your spouse have lived separately for five continuous years immediately preceding the divorce petition. No consent from either party is required.

Q: Which grounds for divorce should I pick?

A: It really doesn’t make that much of a difference, but you need to be able to prove whichever grounds you opt for. While some people might think adultery is morally objectionable, the reality is that courts won’t factor this in to where the children should live or how much one side should get in any settlement, except in rare situations.

Same sex couples normally won’t be able to use adultery as the grounds for dissolving their marriage civil partnership as legally, the definition of adultery is sexual intercourse with a person of the opposite gender.

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

A: No, but it’s advisable to get one if you have children and property. How complex a divorce gets mainly depends on two things: first your relationship with your soon to be ex-partner as if you’re not on good terms, there’ll likely be lengthy arguments about who gets what, and second, whether you have children or property between you.

Most people who expect their partner to be difficult during divorce, or who have built a family and assets with them will opt to use a solicitor both for ease and to ensure they are getting the best results possible.

You don’t have to use a solicitor, but you’ll be responsible to read up on how to draft child arrangement and financial orders yourself, and a court won’t offer sympathy to you if you choose to represent yourself and your partner has a solicitor.

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. If this is the case, a legal 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 do decide divorce is your only option after getting a legal separation, you will still need to go through the divorce process to end your marriage.

If you’re not from a religious background and are considering your alternatives to divorce, you can choose to legally separate, work on the marriage or annull the marriage if you qualify.

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

A: Divorce is split into three areas, and three separate applications. The divorce petition deals with formally ending a marriage, child orders deal with child arrangements and custody, and divorce financial orders deal with finances and assets. They are 3 distinctive applications and must each be filed separately with a fee payable for each. Submitting a divorce petition does not automatically finalise your child and financial arrangements.

While you and your partner may come to informal arrangements around children and finances, the only way to end a marriage is to go through divorce.

Q: How do we agree child maintenance?

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

If an informal arrangement is impossible, you or your solicitor can help make an application to the Child Maintenance Service (CMS) at a cost of £20. Payments through the CMS are legally binding, so if your partner chooses not to pay, they can be forced to.

In exceptional situations, you may not be able to apply to the CMS for help, and instead will need to turn to make 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 if your child has a disability that may not be considered by the CMS
  • Your ex-partner lives outside the UK and therefore the jurisdiction of the CMS

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. This guidance is typically used both when agreeing informal child maintenance arrangements and through the CMS. The amount paid is calculated based on a number of factors, including:

  • 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: 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 sacrified their career or a lucrative income in exchange for looking after children or the home

You shouldn’t expect to get more or less depending on how your spouse has behaved during the divorce as this is only taken into account in exceptional cases and those that involve domestic abuse. The court’s main priority is that any financial settlement is fair and meets both sides’ needs.

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

A: This is also decided on a needs basis and subject to a number of factors including the needs of any children, who the primary carer is and the incomes of each partner. Normally, if the primary carer can demonstrate they would be able to afford running the household and that it’s a suitable size for the number of children, they would be entitled to keep the house. However, there may be conditions attached such as that the house would need to be sold either when the youngest child reaches 18 or finishes university. The other partner may also be entitled to any equity they held in the property, but also continue to share any responsibility in the mortgage.

The other parent would be expected to rent or buy another property if they had the means to do so. However, if they were not able to afford this, it’s likely the court would order that the marital home is sold to free up capital.

It’s also possible that if a house is deemed to be larger than required by the primary carer and the children, it can be ordered to be sold to free up equity as long as the primary carer would have the means to secure alternative accommodation.

Q: What happens to our pensions?

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

By pension sharing order. This is where a separate pension pot is created and a portion of one partner’s pot is moved into the newly created pot.

Or by pension offsetting. This involves an immediate cash payment to effectively offset any pension that could have otherwise been allocated or accrued.

Remember that you will only receive what you ask for in a divorce and many people don’t consider that pensions can be shared. A divorce solicitor will help you ensure you’ve taken everything 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 is possible for a future inheritance to be taken into account during a divorce, but only in cases where the testator of a will is going to die imminently and the amount they are leaving is significant.

Any inheritances that were received during the marriage would likely be taken into account as marital assets and be 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, anything that comes under the umbrella of marriage can be made infinitely more difficult to split.

If the court is asked to intervene, they will normally require a ‘Scott Schedule‘ to be put together which will outline all 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. Solcitors and divorce advice services talk a lot about ‘mingling‘ of assets when it comes to divorce. Anything acquired during a marriage is said to be a ‘marital’ or ‘matrimonial assets‘, while anything acquired before or after marriage is referred to as a ‘pre-marital‘, ‘non-matrimonial’ or ‘post-marital assets‘. Divorce financial settlements will take into account everything that was acquired during the marriage, but can include pre-marital assets.

You can request for pre-marital assets to be excluded from any financial settlement, but a judge will consider two things:

Whether the pre-marital assets ‘mingled’ in any way with marital assets, in which case the asset, or part of the asset, could be considered 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 and it could therefore be split accordingly.

Or if after splitting the marital assets, the judge considers one party’s needs wouldn’t be met, they could ask to take into account pre-marital assets.

If either of these situations are valid, pre-marital assets may be subsequently divided.

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 and that neither side can claim a stake to the other’s assets once it has been approved. 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.

 

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