How to get a Divorce
If you want to bring your marriage to an end, but are not sure how to do it or how much it will cost, then this blog is written especially for you.
It contains a brief guide to divorce in the United Kingdom and also provides answers to the most commonly asked questions I am asked about divorce, such as what will happen to the children or where will I live or what it will cost?
My first bit of advice is… Don’t Panic. There are skilled mediators and lawyers who, like me will guide you through the emotions and stresses that come with this process and as long as you work together openly and honestly, you will come out on the other side stronger and better prepared for whatever the future brings.
The Divorce Process in the United Kingdom
- Grounds for Divorce
To obtain a divorce in the UK, you must show that you have been married for a year or more and that your marriage has ‘irretrievably broken down’ for one of the following reasons:
- Unreasonable behaviour
- Separation for two years or more
- Separation for five years or more
- Filing a Petition for Divorce
Once you have established which ground for divorce you wish to rely on, you then lodge a Petition for Divorce in one of the various UK Divorce Centres around the country (unless there is an urgent reason to seek to issue at Court). The Divorce Centre will serve the Petition on your spouse by post. Evidence that the petition was served on your spouse will be needed to show to the court later in the process.
- Defended and Uncontested Divorces
If the divorce is uncontested and all the procedural requirements have been met, the legal adviser at the Divorce Centre will approve the divorce petition for a Decree Nisi.
If your spouse decides to defend their position, they must file a response to the grounds for divorce within the time limit prescribed. There will then be orders issued by the court and eventually a court date for deciding how the divorce will be settled, assets divided and what will happen to the children. Once this is done, a decree nisi will be issued.
- What is a Decree Nisi?
It’s not a declaration that you are divorced. It is a declaration that from x date, the marriage between the parties will end.
- What is a Decree Absolute?
Once the childcare arrangements and the financial settlement have been agreed to, Decree Absolute will be granted, officially ending your marriage.
Depending on the complexity of the financial settlement and arrangements for your children, this can take anywhere from six weeks to over a year to happen.
Aside from children, most people’s most important consideration is how they will survive and what financial security they will enjoy after the divorce: After all, as Oscar Wilde so eloquently put it, “When I was young, I thought money was the most important thing in life; now I am old, I know it is”.
The wit of one of the world’s greatest writers aside, the fact is that your financial settlement will dictate in many ways, yours and your children’s immediate future.
Firstly, if you and your spouse can work out an amicable settlement between you, that is great. You will both need to have independent solicitors check over the implications of the agreement and turn it into a formal order which can be enforced in Court. If you both struggle to reach an agreement yourselves, mediation can work wonders in facilitating a compromise on contentious issues. We have mediated several high profile marital breakdowns and have been successful in achieving outcomes that are fair and that both parties (and their children) are very happy with. Sometimes, it helps to see things from a fresh perspective.
A good family solicitor will only turn to the Courts as a last resort.
If you are unable to reach an agreement by yourselves or through mediation, then the Courts can determine a financial settlement for you. The factors that the Court take into account when deciding a financial settlement are set out in Section 25 of the Matrimonial Causes Act 1973 and include:
- The duration of your marriage
- Your current and potential future income and that of your spouse
- Your assets and the family’s assets
- Your standard of living prior to the breakdown of the marriage
- The contribution made by both of you to the welfare of the family
- Your respective ages and future earning power
- The behaviour of each party throughout the divorce and whether one spouse’s behaviour has made it unfair on the other party. (Please note: This conduct is only relevant to the divorce proceedings themselves and will have to be extreme conduct for a Judge to take an interest. The Courts are not interested in who was to blame for the breakdown of the marriage)
Can my Spouse Take my Children Away?
If your ex-spouse has stated, “You will never see your children again!”, or something to that effect in the heat of the moment, you may be anxious as to whether or not there is any truth in their words.
You’ll be relieved to hear that in 99% of cases, the answer is no.
Divorce Courts in the UK operate on the basic premise that it is in the best interests of a child to spend time with both of its parents and they encourage divorcing couples to negotiate arrangements for their children amongst themselves.
If you are unable to agree on contact arrangements or where the children will live, the Court will ask that you both to attend a Mediation Information and Assessment Meeting (MIAM) to see if mediation will help you to both reach an agreement.
During mediation and in any subsequent court proceedings, it is important to focus on the welfare of your kids, for example:
- Where are they going to live? Is the family home big enough for them? Will their new home be near to their school, friends and family?
- If when and how the parent (with whom the children do not primarily reside) will see them
- How the children will be supported financially
For example, if your children attend private school, you need to negotiate how the fees will be paid and by who, going forward.
The Courts will only get involved in sorting out arrangements for children as a last resort. If it is necessary to become involved, the court will appoint an expert, often called a CAFCASS officer to help it reach a decision on what to do with the children. Throughout the process, the Court will encourage you to try to reach an agreement between yourselves, as the children’s parents.
Where will I Live?
In many cases, often under the same roof as your estranged spouse; at least until the divorce and financial settlement is finalised. Thanks to the spiralling property market in the UK, even well-off couples often find it impossible to move during a separation without compromising their lifestyle.
The family home is normally the main matrimonial asset and will form part of any financial settlement. What to do with it? Here are a number of options for you to consider:
- One of you buys the other’s share in the property
- You sell the house and split the proceeds (equally or unequally)
- One partner continues to live in the family home with the children, and the other partner receives assets to even up the distribution of wealth.
- One partner continues to live in the family home with the children and the other partner only receives money after the children reach 18 or finish full time education. The property is sold at that point and the proceeds divided in the agreed manner. This arrangement, known as a Mesher Order will normally remain in place until the children are 18 or until the spouse living in the property remarries.
Because there are a number of options available to you in relation to the matrimonial home, it is best to take specialist legal advice to ensure you are doing what is in the best interest of you and your family.
How Long Does it Take to get a Divorce?
How long is a piece of string? This is a question I get asked so often, and the fact is, it is usually up to the couple themselves.
If you are both able to negotiate arrangements for children and the financial settlement amicably between yourselves, your divorce could be done and dusted in four to six (4-6) months.
If neither of you can agree, and the matter goes to mediation or to Court or otherwise gets nasty, your divorce could take a year or more to finalise or in extreme cases, even longer.
Some expenses, such as Court costs are fixed (at the time of writing the fee to file for divorce is £410). If you and your estranged spouse can agree on all aspects of the arrangements for children and the financial settlement, then your divorce could cost less than £1,000 plus VAT.
However, in most cases, couples fail to agree on every point. If your case goes to mediation you can expect additional costs of between £1,000 and £2,000 plus VAT. If you end up in Court, you could face a costs bill that could exceed £10,000 (and this is a conservative estimate).
However, if the divorce becomes protracted, then you can ask the Court to order your estranged spouse to pay you money to cover the costs of the divorce. Also if your ex partner’s behaviour during the divorce is excessively bad, you can ask the Court to make an order that he/she pay all of the costs of the divorce.
So if you and your ex-spouse decide to fight hammer and tongs over every item you own from the family pet through to the wiz-bang garlic press thingamajig that you both had to have and no one ever used, then expect to receive a hefty legal bill. All good lawyers will advise you in a way that keeps your legal costs as low as possible for the circumstances of your case. If you are unhappy with your final bill, you can make a complaint to the Legal Ombudsman.
What if my Spouse Refuses to Agree to a Divorce?
In order to grant a divorce, a Judge must have proof that a Petition for Divorce has been served. Although your soon to be ex-spouse may have told you that they had received the divorce papers, (but planned to do nothing about them), this bit of information on its own is not likely to be enough to convince a Judge to grant a divorce.
On receiving a divorce petition, your spouse has seven working days to return an Acknowledgement of Service to the Court. If they fail to do so, you will need to do the following:
You or your Solicitor can arrange for your obstinate spouse to be personally served with divorce papers by a Court Bailiff or a private Process Server.
When the documents are handed over, the Bailiff/Server will sign a Certificate of Service and this can be used to obtain a Decree Nisi, regardless of whether or not your spouse signs the Acknowledgement of Service.
In some cases, serving documents in person will not work. However, if your spouse has informed you that he or she has received the divorce papers via an email, text or even on Facebook, you can file that information at court with an Application Notice (Form D11) and a court fee and ask the court for an order for deemed service.
Consult a good divorce solicitor to make sure you get this process right at the outset. It could save you a lot of time and headache afterwards.
What if I do not Have a Marriage Certificate?
If you have misplaced your marriage certificate or it has been destroyed, a certified copy can be obtained from the Superintendent Registrar of Marriages for the district where the marriage took place or the General Register Office.
If you were married in a foreign country, and the marriage certificate you have is in a foreign language, you will need to provide an authenticated, translated copy to the Court in order to obtain a divorce in the UK. To dissolve a foreign marriage you must have been living in the UK for at least twelve months prior to filing your petition.
If your marriage took place abroad and you do not have a marriage certificate because the ceremony of marriage itself did not include one, then your nuptials may not be valid under UK law. One of the elements essential to a marriage being valid under British law is that there must be evidence of the marriage, in the form of a marriage certificate or the equivalent. It is worth noting that Mick Jagger’s marriage to Jerry Hall was declared null and void due to the fact they were only married by way of a religious Hindu ceremony on the Island of Bali; therefore, the marriage was not recognised under UK law.
If you find yourself in this type of situation, you may find it more favourable to your circumstances to apply to the court for a declaration as to the validity of your marriage rather than petition for a divorce. It could save you time and money.
Divorce does not have to be painful and messy. In fact, it is entirely possible to have a ‘good divorce’. More often than not, this simply comes down to you and your spouse being able to communicate and negotiate in a fair and reasonable manner. Getting the right advice at the outset is crucial.
Often my clients come to me for a structured advice session at the outset and at strategic points throughout the process. I deliver to them a roadmap of what will happen and what it will cost. Armed with this information, my clients feel empowered to make their own decisions but I am always nearby, available to answer any questions or deal with any last minute negotiations.
If you are considering separating from your partner or getting a divorce, call me at my offices.
Saracens Solicitors is a London based law firm with a large, experienced family law department. If you wish to talk further about any of the issues raised in this article, please feel free to call me on 020 3588 3500.
If you have any comments to make, please add them in the comments section below.
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