We recognise that dealing with divorce proceedings is usually very stressful and demanding for both partners, including the one who initiates the process. The decision to divorce may be made by only one person and come as an unexpected and unwelcome shock to the other, who may feel unprepared and vulnerable. Whatever the background, the parties will invariably experience a range of feelings which often include anxiety about the future, stress, anger and remorse.
Our experienced team of family lawyers can make recommendations for counselling when this is required. As solicitors, our primary skills are to identify and to advise on all of the available practical options and recommend the best solutions in the particular circumstances. We are trained to work closely with our clients to provide practical and independent advice throughout each stage of the process.
It is often said that there are no winners in a divorce. However, we will strive to make the process more comfortable. Our objective is to help clients manage relationship breakdown with minimum practical and emotional stress and upheaval to their lives − and most importantly, with dignity. Whilst we aim to encourage agreement wherever possible, we are also capable of fiercely protecting our clients' financial and personal interests wherever the circumstances require it.
We know that divorce is traumatic. We are here to help, not hinder, and to do so cost-effectively and efficiently. At all stages of the process, we will keep clients informed about cost and its impact on any potential settlement.
Below are some of the main areas which will have to be dealt with in the divorce process:
The divorce process
Note – references 'divorce' include 'civil partnerships'.
Most people think that it is possible to obtain a divorce by showing that the marriage has irretrievably broken down. That is only partly right.
As the law stands, when a divorce is sought, the party seeking to end the marriage must indeed show that it has finally broken down. However, there are only five specific ways in which it is possible to prove the breakdown.
Before a party can seek a divorce, one year must have passed since the date of the marriage.
Starting divorce proceedings
Once that initial period of one year has expired, either party may issue a petition for divorce.
In that application it is necessary to state the ground(s) upon which the divorce is sought.
Five Grounds for divorce
The other party has committed adultery and the person bringing the proceedings finds it "intolerable” to live with the former partner. This ground is generally referred to as “adultery” for brevity.
- Unreasonable behaviour
The other party has behaved in such a way that the person bringing the proceedings cannot reasonably be expected to live with that other party.
- Two years separation by consent
The parties to the marriage have lived apart (even by agreement) for at least two years and they both agree that there should be a divorce.
- Five years separation
The parties have lived apart (with or without agreement) for at least five years.
The other party has deserted (meaning separated without agreement) the person seeking a divorce for at least two years before to start of the divorce proceedings.
Points to note
- The vast majority of divorces are granted without being contested.
- Even if the divorce is not contested, the party seeking the divorce must prove that the claimed ground exists.
- If the divorce is not contested, the proof will be the statements of the party seeking the divorce in a sworn affidavit. Those statements will be examined by a Judge (invariably without either party having to attend court) and if the Judge is satisfied, the formal divorce order will be pronounced in open court at a later date (again, usually without the parties being present, although they can be if they wish).
- Adultery is usually proved by the party against whom the allegation has been made signing a form agreeing that the allegation is true.
- If the application for divorce is on the ground of unreasonable behaviour, only two or three factual allegations are required, not an extensive history of the problems in the marriage.
- “Desertion” means that the other party has left against the wishes of the party now seeking the divorce and failed to return for a period of at least two years.
- If the ground on which the divorce is sought is that the parties have lived apart for five years, then the other party cannot defend the divorce – unless they can show that they would be placed in a seriously disadvantageous financial position as a result of the divorce.
In a divorce who are the participants?
The spouse wishing to obtain the divorce is called the Petitioner. The other spouse is called the Respondent. In some circumstances there will be a Co-Respondent. A Co-Respondent is the person with whom the other spouse has committed adultery. Co-Respondents do not need to be named in a petition, but they can be if the Petitioner chooses.
Will the grounds for divorce change?
It is entirely understandable that people are confused as to the grounds upon which a divorce can be granted. There has been much discussion in the press and in Parliament on this subject.
There are many who say that the time is right for the law to be 'modernised'. By that, they mean that it should be possible for a divorce to be obtained on only one ground, namely that the marriage has 'irretrievably broken down'. Only time will tell whether or not that change will be made.
In the meantime, those considering divorce need to consider what is said above to see what grounds they may have. These grounds currently remain the only way to obtain a divorce in this country.
How long does a divorce take?
A divorce will usually take between four and six months to complete.
However, this is based on the assumption that there are no complications, such as locating your spouse, your spouse not replying to the Court or your spouse defending your petition and/or lodging their own petition in response. It does not factor in the time it takes to resolve the financial issues which can, on occasions, lengthen the divorce process beyond six months. Some divorces can take one year or more to complete.
How much does a divorce cost?
The average undefended divorce will cost between £500 and £800 in legal costs plus VAT. In addition there are court fees which are currently £550.
However, it is important to note that the costs involved can vary, sometimes significantly, depending upon the circumstances of each case. Legal costs can increase by factors such as delays or obstruction by the other party, for example they may decide to represent themselves or to defend the divorce.
Our lawyers will always be completely transparent regarding costs and aim to keep them to a minimum. We will always keep clients updated if there is any change to the original costs estimate.
Will I have to go to Court?
No, not if you and your spouse agree to an undefended divorce and the terms on which it is progressed.
If, however, you or your spouse wishes to defend the divorce or issue a separate petition for divorce on different grounds, this may result in the Court wanting to see you both before it makes any decisions about how the divorce will move forward.
If there are any disputes regarding the distribution of the assets which have accrued during your marriage and/or disagreements involving your children then it is more than likely that you will be required to attend Court.
What document shows that the divorce is finalised
The final document in the divorce process is called the “decree absolute”. In the majority of cases this can be applied for once six weeks have passed since the date when the divorce was pronounced in court, granting the “decree nisi”.
It should be noted that even when the decree absolute is available, this does not always mean that all the other details have been resolved. There may still be outstanding the question of the arrangements for the children and finances.
No parent wants the children to be affected by the divorce any more than is inevitable. Recent research has found that 75% of separating parents achieve this and are able to make suitable arrangements for the children.
The difficult cases are where the parents are unable or unwilling to agree how the new situation will apply to the children. Areas which cause difficulty and prevent agreement can include:
- Whether and if so, how, the children are to divide their time between the parents
- What are to be the arrangements for Christmas, the school holidays and birthdays
- Is either parent to be permitted to take the children abroad either on holiday or for longer periods and if so, what precautions are required to ensure the return of the children
- What is to happen if one of the parents wishes to live permanently abroad and take the children against the wishes of the other parent
- Is a mother with whom the children are primarily living permitted to change the surname of the children against the wishes of their father when she remarries or forms a relationship with a new partner?
- What is to happen if the parent with whom the children are primarily living wishes to move to another area in this country, making it much more difficult for the parent remaining behind to see the children regularly?
- What are to be the general financial arrangements for the care of the children, including the cost of where they will live?
- If the children have to move house, where will they go to school if the parents cannot agree?
These and many others are some of the problems that arise and which some parents find difficult to resolve by agreement. The aim is always to try to help parents arrive at suitable solutions: after all, the children are theirs and they know them better than any outsider ever will. Sadly, this is not always possible and, in those cases, an application to the court almost always has to be made.
How are such problems resolved?
If parents cannot agree, our team are experienced in all issues relating to children. As always, where problems arise with arrangements for children, the overriding principle is that it is the interests of the children which are paramount.
How are the best interests of the children decided?
The starting point is always what is called the 'welfare checklist', which appears in section one of the Children Act 1989. That checklist sets out the factors that have to be considered. These factors are:
- The ascertainable wishes and feelings of the child concerned;
- The physical, emotional and educational needs of the child;
- The likely effect on the child of any change of circumstances;
- The age, sex, background and characteristics of the child which are relevant;
- Any harm which the child has suffered or is at risk of suffering;
- The capability of each parent and of any other relevant person, of meeting the needs of the child;
- What are to be the general financial arrangements for the care of the children, including the cost of where they will live?
- The powers given to the court to regulate the arrangements for a child.
Who will make the decision?
If agreement between the parents proves impossible and if they cannot be helped at mediation (which is compulsory before court proceedings can be issued except in urgent cases), an application for the court to make a decision will come before the Family Court. There, it will be decided either by a bench of three magistrates, who will deal with the less serious or difficult cases, or a single judge for those cases which are more complex.
Very often, the court will receive further information from a social worker from the Children and Family Court Advisory Services (CAFCASS). Such reports are independent but have at their heart the best interests of the child or children concerned, based upon the welfare checklist (see above).
It is important to emphasise that in making the final decision, there is no bias in favour of either the mother or the father: it is the welfare of the child which is paramount and all the circumstances will be taken into account.
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