Divorce: A Guide with Questions and Answers

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 divorce guide for 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.

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’. You can end your marriage without having to assign blame or fault and this is known as a no fault divorce.

Filing a petition for divorce

Once you have decided that you wish to obtain a divorce, an application will need to be completed and filed with the court together with the court fee. Your spouse will receive a copy of the divorce application and will need to respond to the same within a set period of time. It is possible to commence divorce proceedings with your spouse by making a joint application if there is an agreement for divorce or you can apply for it on a sole basis.

Defended and uncontested divorces

Under the no fault divorce, it is not possible to contest a divorce, for example if you issue divorce proceedings and your spouse does not want a divorce. However, there are exceptional circumstances on which the divorce can be challenged, for example if the jurisdiction which the divorce application has been filed in is challenged or if it is contested that the marriage was not valid.

What is a conditional order?

It’s not a declaration that you are divorced. It is a document that says that the court does not see any reason why you cannot end the marriage.

What is a final order?

This is an order confirming that you are divorced and no longer married. This was previously known as the decree absolute.

It is best to wait until the financial issues are resolved before steps are taken to apply for the final order to finalise the divorce unless there are good reasons not to wait.

What am I entitled to financially if I walk away from my marriage?

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 unless there are good reasons not to do so 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, you should attend a Mediation Information and Assessment Meeting (MIAM) to see if mediation will help you to both reach an agreement unless you are exempt from doing so.

During mediation and in any subsequent court proceedings, it is important to focus on the welfare of your children, for example:

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:

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 on the financial settlement amicably between yourselves, your divorce could be done and dusted in four to six (6-8) 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.

How much does a divorce cost?

Some expenses, such as Court costs are fixed (at the time of writing the fee to file for divorce is £612). 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 £1,500 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 but you will need to make an application for this. Also if your ex partner’s behaviour during the divorce is excessively bad, you can ask the Court to make an order that they 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 or fails to respond to the divorce?

In order to grant a divorce, a Judge must have proof that the divorce application 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 application, your spouse will be given a deadline by the court 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 application by a Court Bailiff or a private Process Server.

When the documents are handed over, the Bailiff/Server will provide a statement confirming that the divorce application was served and then you can use this to move forward with the divorce even if your ex-spouse fails to respond to the divorce application.

In some cases, serving documents in person will not work. However, if your spouse has informed you that they have received the divorce papers via an email, text or even on Facebook, you can file that information at court with an Application Notice 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/ certified 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.

And finally…

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.