What are the Grounds for a Divorce?
To obtain a divorce you must demonstrate that the marriage has irretrievably broken down. You will be required to prove one of the following ‘facts’ in support of your divorce:
- Your spouse’s unreasonable behaviour;
- Two years’ separation with your spouse’s consent;
- Five years’ separation;
- Void marriage / civil partnership.
According to the laws of England and Wales, there are specific conditions that apply to each of the above. For this reason, it is always advisable to seek the advice of a qualified divorce solicitor before taking any action.
People commonly make the mistake of submitting a Petition by detailing a divorce based on agreed consent; consent is not a Ground of divorce in England & Wales that can be pleaded on the Petition. We can assist with particularising one of the five valid grounds to satisfy the legal test, which is checked by the Court upon submission.
What do I need to issue a petition?
You will need the original or a certified copy (available from the registry office) marriage certificate, the court fee (currently £550.00 or if you qualify for legal aid a fee exemption form from the court), and of course your instructions for us to complete the divorce papers. If you were married abroad and the certificate is not in English, you will need a certified translation and an Affidavit confirming the accuracy of the translation. If need be, we can arrange for this, but extra costs will be incurred. Also, if there have been any previous Court proceedings (for example injunctions, or in respect of the children) we will need the Court orders.
Does my husband/wife need a solicitor? Can we both use the same solicitor?
Rules of professional conduct prevent us from acting for both parties. It is entirely a matter for your spouse as to whether they obtain legal advice, but generally speaking it is best if they do (even if only for a free initial interview with another solicitor) so at the very least they know where they stand
Will I have to appear in court to get a divorce?
In the case of an uncontested divorce you will not be required to appear in Court. Court appearances may be required in respect of financial arrangements. This is explained in more detail below.
What is ‘unreasonable behaviour’ in divorce?
Unreasonable behaviour is the most common of the facts used for demonstrating a marriage has irretrievably broken down. It involves giving examples of behaviour that demonstrates the relationship has broken down and you are no longer able to live together. Reasons can be as mild as refusing to spend time together or having no common interests.
How long does it take to get a divorce?
This depends on a number of factors. We work efficiently to secure your divorce as smoothly and quickly as possible. Provided that the other side engages (and we receive timely instructions from you), it should take between six and twelve months.
What if my husband/wife is being difficult and will not acknowledge the divorce papers?
If your petition is based on unreasonable behaviour or five years separation, you will still be able to proceed if you can prove to the Court that the other party has received the papers. This is normally done by way of personal service by way of a process server or Court bailiff. Alternatively, an application can be made to the Court for deemed or substituted service.
If your petition is based on adultery or two years separation, it may well be very difficult to proceed as an admission of the adultery alleged or written consent to the two years separation is needed. In those circumstances, you may wish to consider applying to amend your petition to an unreasonable behaviour petition.
There is a further option of applying to the Court for service of the petition to be deemed served by showing that all reasonable efforts have been exhausted regarding service. This is an option of last resort as the test for deemed service is difficult to establish.
How much does it cost?
The disbursements are currently £550.00 to issue the divorce petition at the Court and this includes the Decree Absolute at the end of the divorce action. We know that issues such as divorce can become costly and stressful. This is why we offer a fixed fee of £750 plus VAT for uncontested divorces up to the decree nisi stage. We also offer free 20-minute consultations for all new enquiries, to assist with any issues that you may have.
What if my spouse contests the divorce?
Contested divorces are highly uncommon and should your spouse wish to challenge the validity of the grounds stated in the divorce petition, then the Court would list the case for a hearing to consider the merits of the petition. So long as the grounds are properly made out, and where possible there is supporting evidence of the grounds, then the Court will proceed to allow the divorce to go to the Decree Nisi stage.
This is a highly unusual
How do financial divorce settlements work?
The financial settlement is the agreement you reach with your former spouse regarding the division of your money, property and other assets during the divorce process. This can be agreed outside of Court if possible. If no agreement can be reached, the Courts will set down the details of this agreement and make it into a binding ‘financial order’. The Court process which deals with financial issues is called a ‘financial remedies application’. When the family Courts draw up financial settlements, they take certain key factors into consideration. These include:
- The arrangement for any children of the marriage;
- The length of the marriage;
- The specifics of each party’s finances;
- Resources including income, capital and pension funds.
In the vast majority of cases, the most important factor is “financial need”; need for an income, need for capital (including housing) and need for an income in retirement (pensions). Each half of the former couple will need to fill out a Form E. This is a sworn statement which sets out their future income and financial needs. Be careful to complete this accurately and carefully. We can complete all of the necessary paperwork on your behalf if instructed to represent you in respect of financial proceedings.
We base our advice on legislation, case law and our considerable experience to give you the best possible guidance on how your circumstances might be viewed by a Court.
Our divorce was based on ‘unreasonable behaviour’ or ‘adultery’; does that have an impact on our finances?
It is very unusual for the reasons stated in the divorce petition to impact on finances, the divorce is usually seen as a separate process to the finances.
Will we have to go to Court to reach a financial settlement?
No, many financial cases are resolved amicably whether by direct negotiation, mediation, collaborative law or solicitor-based negotiation. We can help you to resolve your situation without the need to attend at Court.
If an agreement is reached, we advise submitting it to the Court for approval to ensure it is reasonable and to make it legally binding.
What if we can’t agree on how to separate our finances?
If an agreement cannot be reached, possibly due to one or both parties being uncooperative or unreasonable, then it is likely one party (or both) will submit an application to the Court.
Court proceedings are usually used if :
- Your spouse is not giving you all the financial information you need to make a decision;
- There is no hope of negotiating a financial settlement after divorce which is fair;
- There are complex financial issues that you need a divorce Court to help you sort out;
- There is domestic violence – or the threat of it;
- There is an international element: if divorce proceedings may be started in another country, it may be necessary to issue divorce proceedings immediately in England or Wales
It is still possible to reach an agreement within the Court process. The majority of Court applications are resolved amicably, before a Judge needs to make a decision at a Final Hearing. This is often as a result of the financial disclosure that is required as part of the Court process.
However, if you and your spouse still cannot agree, ultimately a Judge will make a decision at a Final Hearing.
The objective is to transition into independence, with a financial order made to suit your circumstances. The order is binding on both parties and default clauses can be attached should either party fail to abide to the terms.
What happens to the family home?
The family home will almost always be an asset of the marriage and will therefore be included in the financial negotiations. Divorce settlement negotiations start from the point of a broad equality in division of assets. If one spouse wishes to retain the family home, they will need to have enough other assets to be able to offset the value of their spouse’s share of the home by transferring assets of that value to their spouse.
If not enough assets are available to achieve this, then the family home may have to be sold so that the equity contained within it can be split.
In some situations, particularly if there are children, it can be possible to be more creative, for example, one spouse could stay in the family home with the children, and the spouse leaving the home could retain a defined financial interest in the property, which they will realise at an agreed future date.
What effect will it have if I move out of the family home before we are divorced?
You will still have the same rights to occupy the home as you had before and can move back in if you choose.
There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need – such as important documents – with you in the first place.
You will need to consider whether you will continue to contribute to the household bills such as mortgage repayments etc. if you leave the property. This could have an impact on the outcome of any financial proceedings between you and your spouse.
Please do contact us to seek advice if you are considering such a step.
How do I end my civil partnership?
You can apply to end your civil partnership if you have been in the partnership for at least a year.
You have to show that the relationship has irretrievably broken down, and that you have good reasons for ending the civil partnership.
There are four potential grounds for ending a civil partnership:
- Unreasonable behaviour – your partner has behaved so badly that you can no longer bear to live with them. This could include physical or mental cruelty, verbal or physical abuse, being irresponsible with money, and being sexually unfaithful.
- Desertion – your partner has left you: without your agreement, without good reason, to end your relationship, for more than two years in the past two and half years (you can still claim desertion if you have lived together for up to a total of 6 months within this period).
- You have lived apart for more than two years – you can get a dissolution if you have lived apart for more than two years, and both agree to end the civil partnership – this must be demonstrated in writing.
- You have lived apart for more than five years – living apart for more than five years is usually enough to end a civil partnership, even if your civil partner disagrees.
Are there any precautions I should take during a divorce, for example, to stop my spouse taking cash from our joint account?
If your spouse can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken. You will also be jointly liable for any debts run up on the account.
If you need access to the money or if you suspect that your spouse may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card.
However, if you suddenly freeze accounts that your spouse needs for living expenses, this will create problems. Your spouse will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.
If your spouse is the sole owner of the family home, you should apply to the Land
Registry to register an interest in the property. This will prevent the house being sold without your consent.
Will I be liable for the other side’s costs?
You may be eligible as a Petitioner to recover some costs of the divorce ‘court issue fee’ depending on the Ground of divorce submitted. You may also be eligible to recover some costs where the opponent is shown to act unreasonably during the Court process, which often results in wasted hearings. If your opponent is legal aid funded, it is unlikely that you will recover your costs.
It is a common mistake to expect that the other side will automatically be ordered to pay your costs.
What does pension sharing mean?
Pension sharing is one of the financial options available on divorce or the dissolution of a civil partnership. It provides a ‘clean break’ between parties, as the pension assets are split immediately. This means that each party can decide what to do with their share independently.
If you decide to opt for pension sharing on your divorce or dissolution of your civil partnership, the Court will issue a pension sharing order (PSO) which states how much of your pension, you, or your ex-spouse or partner is entitled to receive.
The amount is expressed as a percentage of the transfer value(s) of the pension(s) that are to be split and therefore an up-to date transfer value is required. Each transfer value is worked out the day before the pension sharing order comes into effect.
What is considered when making a Pension Sharing Order?
The court will take into account any pensions that you or your spouse may have.
This can include state pensions, schemes offered by an employer, or private pension plans.
Before pension sharing can be set up, you must establish how much any pensions held are worth.
You should include any:
- Pensions you have through an employer
- Additional State pension (this means any pension from the State Pension scheme in addition to your basic State Pension, ie. that you earned while in employment. The basic State Pension cannot currently be split in a pension sharing scheme.)
- Personal pension schemes
It must be the person who holds the pension who applies for a pension valuation.
What happens next?
The exact amount of the pension credit won’t be known until the court order is finalised. When this happens, the amount to be transferred should be a percentage of the cash equivalent transfer value (CETV).
This is where it can get a bit confusing, as the CETV can change over time – even within the time it takes to finalise a divorce. It changes in value because of moves in the stock market, making it important when negotiating a pension share to work off the most up-to-date valuations.
However, what you need to know is the ex-partner will always be entitled to a pension credit equal to the value of the pension debit. In other words, there’s no difference in what is lost and what is gained. But the pension won’t be shared as an exact 50/50 split. Normally, the aim is to ensure equal incomes in retirement, taking into account the other assets.
There are two ways a pension share can be received:
- The receiving party can become a member of their ex-spouse’s scheme in their own right (internal transfer);
- The receiving party can transfer the value to another pension arrangement in their own name (external transfer).
Whatever you decide to do, after the sharing order comes into effect, the receiving party owns the pension in their own right and can manage it how they want.
If you’re thinking about obtaining a Pension Sharing Order, but would like some more guidance about this and other options available to you, we offer free 20-minute appointments which you can book via telephone or our contact form, where one of our experienced fee earners will take time to listen to your queries and advise you on the best course of action in your circumstances.
There are many myths circulating the topic of Divorce Law. We can answer any queries you may have relating to this area of law. We offer free 20-minute appointments which you can book via telephone or our contact form, where one of our experienced fee earners will take time to listen to your concerns and advise you on the best course of action in your circumstances.