Going through a divorce can be one of the most stressful experiences in life. It can affect you emotionally, financially and of course legally. Your divorce will involve important legal decisions concerning
1. Financial Support
2. Division of Property
3. Arrangements for your children under 16 or under 18 if still in school or learning a trade.
Whilst these are vital issues the law on these points is not particularly complex.
One person will start the proceeding leading to divorce by filling out a ‘petition’. This person is the ‘petitioner’. The other spouse (‘the respondent’) must respond to the petition which states why the marriage should be ended using one of the five facts that prove that the marriage has irretrievably broken down.
In an amicable or uncontested (or ‘undefended’) divorce, the couple should discuss who will be the ‘petitioner’ and who will be the ‘respondent’ although it will mean admitting to one or more of the five reasons to divorce. But the ‘respondent’s’ behaviour does not necessarily affect the disposition of property or children. Any dispute or questions can slow the process down significantly, therefore it should be your aim to be reasonable in your demands and to agree on matters where possible at every stage.
1. IS YOUR DIVORCE CONTESTED OR UNCONTESTED?
If you and your spouse agree that you should divorce your divorce is ‘uncontested’. The vast majority of divorces are uncontested. You do not necessary need a solicitor unless you disagree on other issues such as the level of maintenance or division of the property.
2. DO YOU HAVE CHILDREN UNDER 18?
The most important issues in divorce are those involving the welfare of any children under 18 (known as minor children). These include child support (for information see protecting your financial security later in this booklet), parental responsibility and orders for residence and contact (formally known as custody and access). Because these issues are so important, the court will be concerned that what has been decided is in the best interest of your children. You must complete a form called a ‘Statement of Arrangements’ in which you tell the court which plans have been made for the children once the divorce is final.
3. DO YOU HAVE PROPERTY THAT CAN BE EASILY DIVIDED?
If the divorce consists of deciding who for example keeps different items of furniture you and your spouse should be able to resolve these questions without a solicitor. If you own substantial property you will need a solicitor to make certain you receive your full entitlement and that the division of the property is tax effective.
4. DO YOU NEED TO EXPECT FUTURE SUPPORT FROM YOUR SPOUSE?
If you expect to be financially dependant upon your spouse after the divorce you may need a solicitor to help you negotiate maintenance and make the obligation binding by means of a court order.
5. ARE YOU SURE YOU HAVE PROPER GROUNDS FOR DIVORCE?
Your rights to a divorce are not automatic. You must show one in five facts that prove the legal requirements to obtain divorce.
Many solicitors handle divorce cases and some specialise in family law.
You can find a solicitor by
- Seeking referrals from friends or family members who have gone through divorce
- Asking your local Combined Court for names of more active divorce solicitors in your area, also you may find that the Citizen Advice bureau are an excellent referral source.
A solicitor has a duty to advise you as to whether you are entitled to Legal Aid for your divorce and related matters such as maintenance, custody of children or division of property. While many solicitors do accept legal aid some solicitors do not.
Don’t be afraid to ask a solicitor questions to find out whether you feel comfortable with him/her. Your solicitor should be attentive and ask questions that indicate that he or she is listening to you. Here are some questions you may choose to ask.
- How long have you been in practice?
- What percentage of your legal work is divorce?
- Do you generally represent husband, the wife or both?
- What is your hourly rate? And how is the fee to be paid?
- Am I eligible for legal Aid?
You and your spouse may want a divorce but you must satisfy certain legal requirements in order to qualify for a divorce.
You must have been married for at least one year and one of you must have resided in England or Wales for the year preceding the divorce.
If you have been married for less than a year, you or your spouse can obtain a judicial separation until you have been married the required year and then obtain a divorce.
There are 5 basic grounds for divorce which demonstrate irretrievable breakdown of the marriage. Establishing one or more of the following facts proves irretrievable breakdown.
B Unreasonable behaviour
D Two-year separation with the consent of the other party (no fault)
E five-year separation when no consent is needed.
You must prove that through either admission or sufficient circumstantial evidence your spouse had a sexual liaison with another person and that you will find it intolerable to live with your spouse.
You may name the other person involved as a co-respondent but it is not essential to do so and may have serious consequences. It is usually best to avoid naming a co-respondent. If you wish to name the other person you are advised to discuss first with a solicitor.
If this is an uncontested divorce and your spouse admits adultery he or she can write an affidavit providing proof of adultery in the last six months. This record will become part of your court file and the facts would be inserted into the petition also.
If adultery is the reason for the grounds for divorce, not more than 6 months must have elapsed from the time you became aware of your spouse’s adultery whether you are living together or separately.
You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with this person. There are many examples of unreasonable behaviour
- Drug abuse
- Financial extravagance
- Mental instability
- No common shared interest
- Domestic violence
Unreasonable behaviour is now the most common reason for grounds of divorce.
Your spouse must have deserted you without your consent for a continuous period of at least 2 years.
If you and your spouse have lived apart for at least 2 years immediately preceding the presentation of the petition and you both agree to divorce your separation can be grounds for divorce. This is sometimes referred to as a no-fault divorce.
If you and your spouse have lived apart for at least five years immediately preceding the presentation of the petition, separation can be grounds for divorce even without mutual consent.
Not all divorces are amicable. If during the divorce your spouse acts unreasonably you may need the powers of the court to:
- Protect you and your children from violence
- Protect you and your children from harassment
- Protect your property
- Protect your financial income and property
Violent behaviour or mental abuse during divorce is not usual. If your spouse does become violent or threatening it is important to contact your solicitor. The solicitor can if necessary obtain an injunction from a judge within hours. If your spouse then breaches the injunction and continues the violence/abuse the judge can then hold your spouse in contempt of court.
You may also obtain an ‘ouster’ injunction’ which prevents your spouse from entering the matrimonial home. There has to be evidence of recent physical violence or some other serious form of harassment.
You may obtain a non-molestation injunction if your spouse persists in harassing you, telephoning you or visiting the property where you are living. They prevent your spouse from molesting, assaulting or interfering with you and your children.
The penalty for breaching either injunction may be imprisonment.
It is not uncommon for one or both spouses going through divorce to conceal or hide assets to prevent them from being divided equitably by the courts.
If you believe your spouse owns assets that he/she is attempting to transfer, conceal or put into trust you can ask the court to freeze those assets and their location. For example, it would help to have details of your spouse’s bank account.
If your spouse refuses to leave or sell the matrimonial home or consent to a divorce, section 30 of the Law of Property Act allows the court to order the property to be sold. In such cases the court may decide to divide the property to the disadvantage of the uncooperative spouse.
You are not entitled to change the locks unless you have first obtained an ouster injunction’, if there is a risk to your self or family then if you change the locks the court may look towards being lenient under these circumstances.
Resolve as many matters as is possible amicably and do so without a solicitor. It is always best to work out financial matters as quickly as possible following the decision to divorce. You and your spouse may be able to avoid interim court orders altogether if you understand and respect each other’s positions and deal with the utmost good faith. The alternatives are emotional and expensive.
If your spouse continues to pay the mortgage or rent and provide for the family needs, as before no interim court action is necessary. But if the supporting spouse discontinues support you may apply to the court for a financial relief once his or her ‘petition for divorce’ is duly lodged. Because the court seeks to maintain financial stability of both spouses it usually orders the supporting spouse to pay temporary income (maintenance pending suit) until long-term arrangements are resolved through the ‘Decree Absolute’.
Since April 1993 the Child Support Agency has determined the level of maintenance for children when there is no written agreement or when the spouses with whom the children live is in receipt of state benefits. Since April 1996 the CSA will assess the level of maintenance for all children in divorces.
The Child Support Act defines a child as:
- Under 16 or under 19 and in full time education or 16 or 17 and has recently left school (and then he/she only qualifies for a limited period) and in relation to whom at least one parent is absent.
It is important to apply for maintenance pending suit, if necessary as soon as possible after filing the petition because it can take the court some time to allocate a hearing date. The judge can order payments backdated to the date of your petition but in the interim you may find yourself without funds. At this point you may consider Social Security entitlement.
After divorce both spouses remain “parentally responsible” for the welfare of their minor children. This means that either parent can make decisions affecting his or her child, although in practice the parent with whom the child lives will make most such decisions.
These decisions must of course be consistent with any existing court orders. If the decisions conflict with those of the other parent the court must break the situation.
The Act allows the court to make the following orders when necessary.
- Residence Order: determines where and with whom the child shall live. This person is known as the carer spouse.
- Contact Order: determines those with whom the child may spend time, the nature of the associations and when visits should take place. This includes contact by the non-carer spouse and can also apply to other persons such as grandparents.
- Prohibited Steps Order; allows either parent to ask the court to resolve disputes concerning the child’s upbringing. For example, a prohibited steps order may prohibit one parent from removing the child from his/her country of residence.
- Specific User Order: sets out precisely how a specific matter concerning the child should be handled. This may for instance involve school or medical care.
- Care or Emergency Protection Order: allows the court to intervene when a child is being abused or is in imminent danger.
If you and your spouse can resolve issues concerning your children in a fair, equitable and responsible fashion the court is unlikely to interfere with these arrangements.
If your children are old enough to understand try to involve them when making arrangements so they are comfortable with what you propose.
Because the court must carefully consider the arrangements you and your spouse propose for your children it requires detailed information. This must include:
- Where they will live
- With whom they will live
- Whether and when the spouse will visit them
- Where they will attend school
- The amount of financial support they will receive and from whom
- Their health or special needs
- Their day to day care
- Any special arrangements for their welfare and proper upbringing
Once the arrangements have been agreed, the court is notified in writing with a completed Statement of Arrangements for Children in which the petitioner gives details of the childcare proposal.
The court sends a copy of your statement to your spouse the respondent. If the court is satisfied with the arrangements for your children you will receive ‘Notice of Satisfaction’ with ‘The Arrangements for Children’. This advises you that the court approves your proposals and will not exercise its powers under Children Act 1989.
In some cases the court can suspend your final divorce decree (Decree Absolute) if it remains dissatisfied with the arrangements made for the children. If this is the case the court will send you a notice that the Decree should not be made Absolute.
The divorce court has full authority to divide income, debts and property if the husband and wife cannot resolve these matters on their own. It is usually disputes over money that cause difficulties.
Financial arrangements are determined on the principle of need. The law is moving away from the idea that the husband must forever support his wife. The court also considers the potential earning capacity of non-working wives.
Another trend nowadays is towards a ‘clean break’, where instead of extended maintenance payments the recipient spouse receives a lump sum payment. These arrangements are most appropriate for couples that have been married a short time and have no dependant children.
Carer spouses, or spouse who have given up a career to raise small children are known as ‘fully entitled’ The court seeks to protect their vulnerable positions and do what ever necessary to ensure they have suitable home and income consistent with the supporting spouse’s income. Their pension rights will also be considered.
The division of property during a divorce is based on the principle that marriage is a form of economic partnership. Regardless of ownership assets accumulated during the marriage are divided equally.
Marital assets include anything of value such as your home, it’s contents, any savings, business interests, motor car etc. During divorce these must be disclosed, valued and then divided.
Organisations will help you cope with financial matters of divorce, keep a careful record right from the onset of divorce proceedings and maintain them. You may be requested somewhere during the divorce proceedings to disclose your full financial history.
Make certain every important asset you and your spouse own is accounted for. It is remarkably easy to overlook valuable assets.
- A valuation of the matrimonial home
- The redemption figure of the mortgage
- Pension and other retirement plans
- Life insurance policies and surrender values
- Endowment policies and surrender values
- Bank statements for the last 12 months
- Building Society passbooks for the last 12 months
- Share portfolios
- Wage slips for the last 12 months
- Credit card statements for the last 12 months
- Details of your liabilities
- Inventory of home contents (antiques, jewellery etc)
- Cash at bank, building society
- Savings account inc Tessa’s PEPs and ISA’s
- Motor vehicles
- Valuation of any other propert
Does either you or your spouse own a business? If so you should take the following into account:
- Business plans
- Current accounts
- Life insurance policies maintained by the company that name either of you as a beneficiary
- Tax returns of the business
Estimate the value of each item as accurately as possible. Indicate in which name each asset is held.
Repeat the same exercise for liabilities:
- Tax liabilities
- Hire purchase agreements
- Unsecured loans/secured loans
- Charge account balances
- Credit card balances
- Child maintenance from previous marriages
- Personal guarantees
- Outstanding judgments
- Potential or threatened claims
Compile your records so you understand fully everything about your finances and those of your spouse.
Next prepare detailed expenditures or a budget of what it will cost you to live in style reasonably similar to that which you enjoyed during the marriage include
- Utility charges (gas, electricity, water)
- Council tax
- Car and travel cost
- Clothes for yourself and your children
- School fees
- House insurance
- Entertainment and holidays
- Miscellaneous i.e. hairdressers, personal items etc
You and your spouse should come to an agreement on the fair division of marital assets as soon as possible. Before you negotiate keep 3 pointers in mind
1. Avoid arguing
2. Set specific times to meet
3. Involve 3rd parties
Your divorce makes you a single person once again to live your life free of marital obligations and responsibilities to your spouse.
Once divorced you will experience changed relationships with your former spouse, children and even mutual friends. Divorce takes its toll in many ways.
You may feel guilty for a time you may question whether you have made the right decision. You may experience moments of joy, balanced by anxiety, depression, fear and confusion. These unsettled emotions are likely to pass as you make an effort to get on with your life.
The most difficult effect perhaps is the one on your children. Your children may not appear to be affected by the divorce, but they almost always are. They may be confused and uncertain about how they should feel or react towards each parent.
It is vital to be sensitive to your children’s emotions even long after divorce. Look out for changes in behaviour, attitude, performance in school or loss of old friends.
Possibly economic adjustments may need to be made. Most couples that get divorced discover that the economics can be devastating. Two families must now exist where one existed before. This means you may probably have less money and a more modest lifestyle than before.
Divorce may be the beginning of a new and happier life in which you enjoy new friends, a new lifestyle and perhaps even more open, honest and healthier relationships with family friends and loved ones.
What is mediation?
Mediation is a way of sorting out the issues that arise when you separate. The mediator is there to make sure that your discussion is constructive and that each of you has your say.
Mediation is a flexible process. It can be used to sort out problems about the children or about the financial side. It is not there to sort out your relationship problems (in other words it is not about trying to get you back together – that’s the role of marriage counselling), but rather to help you agree the issues that arise once you know that you are going to split up.
- Mediation is like having a referee (or impartial guide) for your discussions. Mediators are trained to practise in this area and will help you identify and resolve any issues.
- Mediators are neutral and do not take sides. They cannot give advice. It is helpful to take advice from your own solicitor before and during mediation. The mediator can tell you more about that.
- Once you have reached an agreement, the mediator will draw up a “Memorandum of Understanding”, setting out what is proposed. You can then take that to your solicitor, who can draw up and advise you on the necessary legal papers.
The traditional form of family mediation takes place over a series of mediation sessions, each usually lasting about an hour and a half. This type of process is usually different to lawyer assisted mediation.
Before mediation starts, the mediator will meet each of you separately to make sure you are both comfortable – and safe – to meet together and mediate. This may be over the telephone or in a separate meeting.
In the first mediation session, you will discuss what the agenda is and what issues you want to be addressed. The mediator will then help you gather together information and to discuss those issues.
There may be four or five sessions over one, two or three months, but this depends very much on how many issues there are, and how difficult they are to sort out. Once the issues have been agreed, the mediator will set them out in writing, in a “Memorandum of Understanding”. You can then take them to your lawyer to receive advice, and possibly have the legal paperwork drawn up. In many cases, this will be in a court order which will then be sent to the court – so the court can make what you have agreed into a binding order.
Apart from the obvious benefits of helping you to reach an agreement by yourselves, this is the most cost effective way of sorting out what happens when you split up. Some mediators are independent and work for a charity like National Family Mediation. They will have lower charging rates than lawyer mediators.
Because you are involved in the discussions directly, and end up with an agreement, you know that the deal is one you can live with. You will have looked at all the options yourselves and you will know that what you have decided should have the best chance of working for you and your family.
With mediation, you are in the driving seat. The process empowers you – to gather the information about finances, for example, and to understand it; to discuss the options direct and to make decisions about them. A criticism of the legal process (particularly if courts are involved) is that decisions are made for you rather than by you – and those decisions are imposed on you. You have to live with those decisions whether you like them or not.
For many people mediation can be the right approach. The Government is very keen to promote it for this reason, but also because it is rightly seen as being less costly for the couple. This has unfortunately resulted in the Government proposing to remove legal aid for the majority of divorce, financial and children proceedings and instead to provide legal aid only for mediation. The proposals fail to recognise that, certainly where finances are concerned, mediation works best in partnership with independent legal advice in most cases.
But mediation is not suitable for everyone. You have to trust your spouse or partner to be open and honest, especially in producing financial information. Some people are simply not reasonable in their demands and it may be a problem trying to get them to agree things.
You also have to feel and be safe in the mediation process, so it is rarely appropriate if there is any domestic violence, abuse or too much of a power imbalance in the relationship generally.
Before court proceedings can be issued – either about children or about finance – you will usually be expected to attend a meeting about mediation to ensure you have information about the process. This is called a Mediation Information and Assessment Meeting (MIAM). This meeting can be a useful way of finding out more about mediation, although it is better to have explored the option of mediation before you decide that you want to start court proceedings.
Your solicitor may decide with you that a MIAM is not needed, because there may domestic violence or an international aspect that means proceedings have to be started urgently. It may also be considered that exploring mediation is inappropriate if you have already been through the collaborative law process and unfortunately not succeeded in reaching an agreement.
Whether or not you need legal advice depends on the issues at hand. In most cases, it is helpful to have independent legal advice – for each of you.
Your lawyer will be able to advise:
- What do you need to think about when you go into mediation.
- Whether the financial proposals will work in practice.
- What financial information you need
- Whether you have thought of all the necessary component parts of your divorce settlement.
- Whether the practical arrangements are going to work for you all.
- Whether a court might see things differently
- Whether it is fair or not!
The mediator can give you legal information (including what the powers of the courts are to make certain orders) he or she cannot give you legal advice. Effectively, the mediator is there to facilitate the discussion – to act as a referee, guide or director of the process. The mediator has to be impartial and cannot tell you whether or not the settlement is sensible or fair for you.
Talk to your partner to see whether he or she would be willing to go to mediation. You cannot force somebody to go to mediation if they do not want to do so. Even if it is the best way forward in your mind, it may be too daunting for your partner – so don’t push it too hard. It is often best to let them make up their own mind in their own time.
Help your partner to research it as well, and pass on the information that you have found.
Relate – 01482 329621
Citizen advise bureau – 01482 224608
Council 01482 300300
Relate – 01234 456350
Citizen advise bureau – 01582 486632
Council – 01582 546000
Relate – 0845 165 1830
Citizen advise bureau – 0844 826 9713
Council – 01942 244991