Frequently Asked Questions about divorce
Can I get a divorce?
If you have been married for more than 12 months and can prove your marriage has broken down by one of the 5 facts: -
If your partner denies adultery then you may be requested to prove this by identifying the person that your spouse has committed adultery with. Proving this can be very difficult and for this reason divorce petitions based on this ground do not always succeed.
You will be asked in the divorce petition about your spouse's unreasonable behaviour, you must also state what and why his behaviour made it difficult for you to continue living with them. You may use adultery as an example and you would not need to prove the adultery. This may be a better option than relying on adultery as the only ground.
You cannot start divorce proceedings until your spouse has been left for two years. You will then need to supply the date of when your spouse left you and show that you have not heard from your partner since that date.
In order to use this ground for divorce your spouse must agree to the divorce. The date of when your spouse left will need to be given on the divorce petition, but you can estimate this if you do not know the exact date. Also a reason for the separation will be need.
No consent from your spouse is needed for divorce on these grounds. If your spouse will not consent to a divorce this ground could prove useful. You will need to give details of the date of the separation and brief reasons why you separated.
What is separation?
To be classed as separated, all you have to do is live apart. When you are living apart, you are classed as separated by the Inland Revenue and by the Benefits Agency.
Is your divorce contested or uncontested?
If you and your spouse both agree that you should divorce, then your divorce will be uncontested. However if one spouse is unwilling to divorce, the divorce will be contested by that spouse. Then the services of a solicitor will be needed to determine whether there are grounds for divorce.
Do you have minor children stuck in a divorce?
If a couple have children under the age of 18 (under 16 in Scotland ) these children are called minors. Minors are an important part of any divorce, as there are issues with parent responsibility, child support and residence and contact, these are also known as custody and access rights. A decision has to be made that is in the best interest of the minor children as the welfare and care of the couple's children is important. Your solicitor will approve the agreements concerning the minor children that you and your spouse have made. An experienced solicitor can help guide you to a settlement that the court will approve as being in the best interests of the minor children.
Do you have property which can be easily divided?
If you and your spouse only have to decide who gets the furniture, CD's and DVDs' and the house cat and you can easily resolve these problems with each other you don't need a solicitor. Obtaining a court order will ensure no financial claims on each other will happen in the future. In Scotland if no financial order is made on divorce there can be no financial claims on each other in the future once the divorce decree has been granted and the appeal period has been passed.
If you and your spouse own substantial property you will want to consult a solicitor who can make sure that you receive your full entitlement to the property and that the property is tax efficient. Also a solicitor can make sure that the agreement between you and your spouse is recognised by the court as final and not to be altered in the future. The terms of the agreement are set out in a court order which the court will then seal. This is different in Scotland as it doesn't need to be recognised or sealed by the court if the financial agreement is in a registered separation agreement.
Do you or your spouse have connections abroad?
If either of you has connections abroad maybe one of you lives there, owns a property there, pays tax or born there, the divorce proceeding can be brought in that country. This can help one of you but disadvantage the other. Deciding where the divorce proceeding are brought is essential in any divorce. Contact a solicitor to ensure that you choose the country in which you issue your divorce.
Do you need or expect future support from your spouse?
Are you expecting financial help from your spouse after your divorce if so contact a solicitor where they can help you negotiate periodical payments and make the payments binding by the means of a court order.
If you and your spouse both want a divorce and agree on the division of the property, have no minor children, your assets are not substantial, you aren't disputing any maintenance or child support and you have proper grounds for divorce you probably don't need a solicitor. If you have pension assets that you want to divide equally you will need to consult a solicitor as they will need to be divided after specific court orders have been made, as this is a complex area or the divorce.
To save money conduct your divorce yourself and seek advice from a solicitor only when necessary like financial matters and agreeing to agree on matters with your spouse as much as possible.
Is there an alternative to divorce?
Yes and its called Judicial Separation it's rarely used but when it is used it's usually for religion purposes as some religions have objections to divorce. It follows the same procedure as divorce helping to settle disputes regarding minor children. The difference is that you no longer have any legal duty to live together but you cannot remarry at a alter date so this needs to be considered carefully with your spouse and solicitor.
How long will it take?
Every divorce is different and so the time it takes to divorce varies from court to court, case to case. The average time is 5 to 8 months but it depends on the type of divorce and if it involves minor children. The help of an experienced family lawyer can help reduce stress when dealing with custody and access battles through the legal process.
What happens when children are involved?
If a child of the marriage or a child who has been treated as such, a Statement of Arrangements about the child will be filed with the divorce proceedings. Details of the child's school and other parent and contact arrangements need to be filled in. This applies to children under 16 and children over 16 in full time education. These details should be checked with your solicitor.
What forms do I need to fill in?
The forms you will need are D8, D8A, D36, EX160A and EX160. These documents will be stating specific things and need to be filled out correctly so having a solicitor to help you is a good idea, the court will give you blank copies if you make an error.
The process of the divorce
The petition will clearly state the reason why you are filing for a divorce (one of the 5 facts). You will need to send your original marriage certificate to the court with your completed form. The court will then check and process your documents and then send them to the other party which can take around 4 weeks. The other person will receive the Petition, Statement of Arrangements and a form with a question and answer format called an Acknowledgement of Service Form which needs to be filled in. These are then sent back to the court by the other party promptly.
When the court receives the Acknowledgment it will take around 3 weeks for them to process it, then both parties are sent a copy of the Acknowledgement and the Statement of Arrangements if children are involved. Also included will be two copies of an Affidavit and an Application with directions. When you have completed the Affidavit with the help of a solicitor it will be sworn (that the contents of the Affidavit are true) including any other documents you have filled in. This can be done by the court with no charge but they cannot offer any legal advice. The Application for directions is signed and dated by you and sent to the court.
Within the four weeks of you sending it to the court the district judge will decide whether to grant the first decree of divorce. This is called a Decree Nisi. If the district judge is satisfied with the grounds of divorce a date for the Decree Nisi will be set. If the documents show that arrangements for the minor children haven't been agreed yet both parties will be asked to attend court.
The Decree Nisi will be agreed on the date set by the district judge, neither party has to attend its up to you. The Decree Nisi signifies that the ground of divorce has been proven and that the law has taken place.
Six weeks and one day later from the date of the Decree Nisi was set (no earlier) the Petitioner can apply for the final decree, this is called the Decree Absolute. Once this has been granted by the district judge the divorce is final and there is no hearing for this. The application to the court is made with a standard form which holds a fee of around £40. Once you have received a copy of the Decree Absolute you are divorced and free to marry in the future.
Naming the person involved in adultery
If you want to name the other person you have a right to but it is best avoided as emotions will be already high and this could make matters worse when arranging the split of assets etc. The court can proceed with the divorce without a name.
We can't agree on who has the children or splitting the money
If you can't agree with your partner who is to have custody of the children or access rights and or can't agree how splitting the money involved your solicitor may decide on a mediation or collaborative process. If this still doesn't help you may be advised to attend court where the district judge will decide.
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