Divorce & Separation
Divorce is not a one-step procedure, and it’s actually built up of multiple processes which all need to be dealt with separately.
This includes actually ending the marriage, dealing with finances and assets, and then what happens regarding any children involved.
It is, of course, a lot easier to go into these proceedings with a clear head and willingness to compromise on what both parties want to happen; but this is easier said than done.
Ending the Marriage
There is only one ground for divorce; the marriage has irretrievably broken down. This can be shown through reasons such as; mistreatment of one another (i.e. adultery, unreasonable behaviour), living apart, a breakdown in communication.
The party applying for the divorce is known as the Petitioner, the other is the Respondent. The process of ending the marriage can be broken down into four basic summaries of the stages:
The Petitioner prepares the divorce petition and sends it to the Court along with the original, or certified copy, of their marriage certificate and the Court fee of £550 (As the Court fee is means tested, the petitioner may be suitable to a fee exemption our partial fee exception).
Acknowledgment of Service
Once the petition is received, the Court will send a copy of it to the Respondent, in response to which they must complete an Acknowledgement of Service form. This form indicates whether or not they intend to defend the divorce.
It is rare for a divorce to be defended, and more likely a case of the Respondent not responding/returning the form. In this case, a court bailiff or private investigator will be sent to formally provide another copy.
After acknowledgment has been received, the Petitioner needs to complete an application for the next stage; Decree Nisi. The Court will then decide whether they are entitled to a divorce. If yes, it will be stated in open court (Pronouncement of Decree Nisi).
6 weeks (...and 1 day) after Decree Nisi, the Petitioner has to apply for finalisation of the divorce. Next, the legal document which states that the parties are no longer married can be produced, this is termed Decree Absolute.
If this isn’t done by the Petitioner, the Respondent has to wait a further three months before being able to apply themselves. More often than not however, this will require a court hearing.
The Petitioner can ask the Court to order the Respondent to pay the fees. If they refuse, both parties will need to attend a court hearing at Decree Nisi stage to argue their side.
The Court will usually act in the Petitioner’s favour if the Respondent has acted unreasonably in the marriage, or been a major reason for the divorce.
Who gets what? - What will be expected financially?
The law entitles both parties to be able to make financial claims against the other on pretty much any and all assets; the only way to stop these claims carrying on is to ask the Court during/following the divorce. Otherwise, the ability to claim will remain open in the future, even on assets which have been built up after the divorce.
Decisions on how things are split can either be made by the parties (Consent Order), or if an agreement can’t be reached, by the Court through an Order (Financial Remedy Proceedings).
Duty of ‘Full and Frank Disclosure’
Both parties have an obligation to provide complete disclosure on all information regarding their finances. This disclosure also needs to be updated, so any changes in situation must be shared; for example a pay rise or moving house.
What will be taken into account when deciding what goes where?
All properties, savings, investments, pensions, and any assets owned solely or jointly; plus any debts and loans – will all be considered when dealing with finances. Additionally, any other relevant circumstances can also be taken into account when deciding divisions between parties; these might include physical or mental factors, and any unreasonable behaviour.
What Orders can be put in place?
- Spousal Maintenance - Periodical payments from one party to another
- Dealings of Property - Orders can be made in regard to sales, divisions, transfers, and occupations related to any property involved
- Sharing of Pensions - For example, one party could be awarded with a share of the other’s pension
The Court cannot order payment of Child Maintenance. An agreed figure can be arranged but not imposed. Therefore, a separate application to Child Maintenance Services needs to be made.
What about the kids?
If children are involved, the ideal scenario would be for parties in charge of their care to be able to agree on arrangements for them. Unfortunately, this is not always the case.
If agreements can’t be made, parties can apply for the Court to make decisions. Decisions made will always be in the best interest of the child.
Don’t mess with the Status Quo - Very good reason must be provided to change the settled living conditions of a child, and any orders made are never final and will change with circumstances.
In influencing the Court’s decisions, a report containing a recommendation of what, if any, order should be made will be put together. This is usually done by a Children and Family Reporter, or in cases where there’s a suspicion the child is at risk, by Social Services.
If the Court sees reason for them, it can put Orders in place when it comes to children. Orders will only be made if they are of more benefit than no order at all.
- Child Arrangement Orders - With whom a child will live and spend time with, and when the child is to live or spend time with anyone else.
- Parental Responsibility Order – Granting the right to make major decisions about the child.
- Specific Issue Order & Prohibited Steps Order – Where major decisions can’t be agreed on between those who have Parental Responsibility, the Court will decide.
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