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Our Divorce and Family Law experts at George Green answer your questions.
Can I get a divorce?
You can get a divorce in England and Wales if you have been married for at least one year and you feel that your marriage has irretrievably broken down.
Under the old law, you had to use one of five facts to prove that your marriage had irretrievably broken down.
The Divorce, Dissolution and Separation Act 2020 reformed divorce/dissolution law on 6th April 2022 so that divorces are now on a “no fault” basis.
All you need to do is provide a statement of irretrievable breakdown within the Divorce application.
How long will my divorce take?
Under the new law, there is a minimum overall timeframe of 26 weeks (6 months).
This includes a minimum period of 20 weeks from when the divorce application is made, until the Conditional Order (previously called the Decree Nisi) can be applied for. The earliest date the Final Order (previously called Decree Absolute) can be applied for is 6 weeks from the date of the Conditional Order. Where there are finances to be resolved, it may be advisable to delay applying for the Final Order as this may prejudice your position.
Can I get a quick Divorce?
No, the minimum timeframe of 6 months applies. If there are exceptional circumstances for the need to apply for an urgent Conditional or Final Order, a separate application would have to be made to the Court for permission to make the urgent application – however this is very rare.
Will I have to go to court to get a divorce?
No, if your divorce is undefended neither party will need to attend court unless there is a dispute over divorce costs. Under the new law, a divorce can only be defended in exceptional cases and on limited grounds such as jurisdiction and the validity of the marriage.
If disputes arise involving financial matters or the children, you may need to attend court to resolve the dispute. Our divorce and family lawyers at George Green offer other out-of-court options. Please contact a member of the team to find out more.
Can a divorce be amicable?
Yes – with the new reform being “no fault” this takes away the need to blame the other party. It is hoped that this will allow other issues such as children and finances to be resolved on a more amicable basis.
What is a Conditional Order?
A Conditional Order (previously called a Decree Nisi) is an order made by the court when it has considered the paperwork submitted by the parties and is satisfied that the Applicant (the person applying for the divorce) is entitled to a divorce. This is not the final order in the divorce.
What is a Final Order?
A Final Order (previously called a Decree Absolute) is a final order from the court officially ending a marriage and enabling either party to remarry.
Will the Divorce include dealing with our matrimonial finances such as the house?
The divorce will only legally end the marriage; it is important to seek advice on dividing the matrimonial assets, such as the house, savings, and pensions. This would be dealt with separately from the Divorce, but financial Orders can be made by agreement (known as Consent Orders) or through separate Financial Remedy proceedings once the Divorce proceedings have been issued.
Do I have to sort out the matrimonial finances now or can this wait until after the divorce?
You do not have to deal with sorting out your finances at the same time as the divorce but there could be risks in the future if you do not, in particular if you remarry. The Court can make a financial Order once the Conditional Order has been made, as well as after the Final Order. However, once the Final Order of Divorce has been made, this can limit some of the claims you can make, as well as affect any potential inheritance from your former spouse.
What will happen to my finances and assets on divorce? For example the family home
Both parties must provide full details of their financial positions through a process known as financial disclosure. Once disclosure has taken place, parties look to reach an agreement as to the division of their assets. An agreement can be reached directly between the parties or negotiations conducted through the divorce and family law solicitors.
If an agreement has been reached it is noted in a Consent Order which is signed by both parties and sent into court for approval. Once approved by the court it creates a legally binding financial settlement.
If it is not possible to reach an agreement outside of court, we would advise you to issue court proceedings, known as Financial Remedy Proceedings. This involves the court assisting the parties of a divorce or civil partnership dissolution to reach a financial settlement. The court has the power to give any of the following orders: Interim maintenance, Periodical payments, Lump sum payment, Transfer of property and Pension adjustment orders, for more information click here.
Once proceedings are issued a strict timetable is put in place and action can be taken against a party who fails to comply with this, for example by failing to disclose their assets. This process is designed to help couples reach a settlement by agreement, in which case a consent order will be filed and the proceedings brought to an end. The majority of cases settle however where this is not possible, the court will impose a settlement on the parties.
What is a joint lives basis?
This is an order the court makes for one party to pay maintenance to the other. The terms joint lives means for the remainder of their life unless the court makes a further Order, the receiving party remarries or either party dies.
What is a pension sharing order?
An order the court makes transferring a share of a Pension from one party to the other.
What is mediation?
Family mediation is a quicker, more cost-effective way of dealing with the financial aspects of the divorce and disagreements regarding the arrangements for the children. It enables the divorce to be completed without conflict and enable you and your family to stay in control when making decisions about children, properties and finances.
What if my partner does not agree to mediation?
Mediation can only be successful if both parties are willing to participate. Unfortunately, if your partner does not agree to mediation then mediation cannot take place and negotiations will have to take place through your respective solicitors or in the context of court proceedings. Our expert divorce and family law solicitors will guide through the process every step of the way.
What are the benefits of mediation?
Mediation has a lot of benefits for you and your family. For example, it reduces the cost of getting a divorce, it is a lot quicker than going to court and it enables you and your partner to stay in control when making decisions about your children, family home and finances.
Who will keep my kids, following the divorce or separation?
If you and your partner cannot reach an agreement on where the children should live, you will need to consider whether mediation is appropriate. If mediation is not appropriate, then you can make an application for the court to decide the best arrangements for your children.
The court will make a Child Arrangement Order which regulates the arrangements of where a child will live and with whom they are to spend time with or otherwise have contact.
The order will state in detail how the child’s time is to be divided. In most cases an order will specify that a child is to spend time with both parents, but the amount of time spent which each parent may not be equal. However, the order is a reflection of the equal status of both parents in the eyes on the court. Alternatively, the court may decide the child is to live with one parent only and have contact with the other. In some cases it is appropriate for contact to be supervised or limited to indirect contact, for examples by letters, cards, calls and video calls.
What is parental responsibility and how can I apply?
Parental responsibility simply means all the rights, duties, powers, responsibility and authority parents normally have in relation to their children. It includes being consulted in relation to all major decisions in a child’s life such as education, religion, medical treatments and the change of a child’s name.
Unmarried fathers do not automatically acquire parental responsibility for their children unless they are named on the birth certificate.
Our divorce and family lawyers can advise you on applying for parental responsibility.
My ex-partner isn’t paying his child maintenance, what can I do?
You can apply to the Child Maintenance Service (“CMS”) previously known as the CSA. There is also the possibility of applying to the court for financial assistance.
What is a pre-nuptial agreement?
Many of our clients view a pre-nuptial agreement as an insurance policy. Our family lawyers would advise clients to consider a pre-nuptial agreement if:
• You are bringing wealth into a marriage or civil partnership
• You have business assets that you would like to protect
• You are getting married for the first time and want to keep any assets owned prior to the marriage separate
• You are getting married for a second time and wish to protect your assets
• You want to preserve assets for your children.
At present, pre-nuptial agreements are not strictly legally binding. However, they can be increasingly persuasive as a starting point for the division of assets following a divorce or breakdown of a relationship. The agreement provides clear evidence of a couple’s intention at the outset of the relationship and of the assets each partner brought to the marriage or civil partnership.
How can I stop my ex-partner moving away with my kids?
You can apply for a Prohibited Steps Order. The court would then assess and decide what is in the children’s best interests. These types of order can be made on an emergency basis if necessary.
How can I stop my ex-partner harassing me?
There are a range of court orders which can be obtained to protect you from abuse and to stop the abuser coming into your home. Breach of such an order is a criminal defence and will be dealt with by the police.
Non-molestation orders prevent a person using or threatening violence against another, or from being abusive towards, pestering or harassing another. Breach of such an order is a criminal offence and will be dealt with by the police.
The court can also make orders regulating the occupation of a property. These can be used to force a perpetrator of domestic abuse to leave a property, and if necessary the court can attach a power of arrest to the order to enable the perpetrator to be immediately arrested in the event he/she attempts to return to the property while the order remains in force.
For more advice, please contact one of our family lawyers.