Am I entitled to a divorce?
You are entitled to a divorce if your marriage has “irretrievably broken down”. This is the only ground upon which a divorce can be obtained in English law.
You can show that your marriage has irretrievably broken down by proving one of the following five facts:
(i) that your husband/wife has committed adultery and you find it intolerable to live with him/her
(ii) that your husband/wife has behaved in such a way that you cannot reasonably be expected to live with him/her
(iii) that your husband/wife has deserted you for a continuous period of at least two years
(iv) that you and your husband/wife have lived apart for a continuous period of at least two years and your husband/wife consents to a divorce.
(v) that you and your husband/wife have lived apart for a continuous period of five years.
What constitutes “unreasonable behaviour”?
Fact (ii) above is often referred to as “unreasonable behaviour”. The behaviour of your husband/wife does not have to be directed at you. For example, if they have committed a criminal offence this could be regarded as unreasonable behaviour. Unreasonable behaviour can include low-level behaviour over a period of time. What constitutes unreasonable behaviour will vary depending on the circumstances of your marriage.
My husband/wife committed adultery some years ago. Can I rely on this fact to obtain a divorce?
This depends on when you found out about the adultery. You cannot base a divorce petition on adultery if you have lived with your husband/wife for more than six months after discovering it.
How do I go about getting a divorce?
The Court grants divorces. Filing a divorce petition at Court starts the process.
There is a lot of complicated law relating to divorces, so it is easy to make mistakes when drafting a divorce petition unless you know exactly what you are doing.
My husband/wife has applied to the Court for a divorce. What should I do?
When you receive a divorce petition from the Court this should be accompanied by an acknowledgment of service form. For assistance in completing this form and advice as to any issues arising from the divorce proceedings you should contact us as soon as possible.
I married abroad. Can the English Court grant me a divorce?
It is not the place of the marriage that determines which country’s Courts can grant a divorce. Broadly speaking, you will be able to issue a divorce petition in England or Wales if either you or your husband/wife lives in England or Wales. Complications may arise if either of you has only recently moved to England and Wales after living abroad or if either of you spends part of your time in England and Wales and the rest of your time abroad.
Scotland and Northern Ireland count as “abroad” for these purposes as they have legal systems separate from that of England and Wales.
My husband/wife lives abroad. Will this make a difference to my divorce?
If you and your husband/wife live in different countries or have substantial links with more than one country, it is possible that more than one country’s Courts can grant a divorce. If so, you should contact us as a matter of urgency.
When there is a dispute as to which country’s Courts have jurisdiction, it is usually the Court in which the divorce petition was first issued that will take the divorce forward and will have jurisdiction relating to matrimonial finances. The law relating to dividing assets and finances on divorce varies from country to country, so it may be necessary to issue your petition swiftly.
I am worried that my husband/wife might take offence if I try to divorce him/her. Is there anything that can be done to prevent this?
If you are concerned that your husband/wife will threaten or harm you, you should speak to us about obtaining a Court order for your protection.
It is sometimes the case that husbands/wives take offence if they think a divorce petition is unfair to them. It is usually possible to agree the wording of a petition so that the divorce can take place without offence being given. If allegations of unreasonable behaviour are made it is open to the person receiving the divorce petition (the Respondent) to deny the allegations but not defend the divorce.
Very few divorces are defended. If your husband/wife might defend your divorce you should discuss this with us so we can advise you and explore whether a mutually acceptable way forward can be agreed.
Sometimes husbands/wives try to frustrate divorces by refusing to acknowledge service of the divorce petition. This rarely succeeds. Again, we can advise as to your options.
If you are seeking a divorce based on two years separation you will need your husband/wife’s consent to the divorce. It is best for us to find out whether they are prepared to give this consent before issuing a divorce petition.
We both want a divorce. Can I come in to see you with my husband/wife?
You cannot apply for a divorce together. A firm of solicitors is not allowed to act for both parties in Court proceedings even if you both agree on your divorce and all connected issues.
Will we have to go to Court to decide which of us our children will live with?
The law places great importance on parents reaching agreement regarding arrangements for children. Most parents are able to reach such agreement and a document called the “statement of arrangements for children” is filed with the Court with the divorce petition.
We support the Parenting After Parting initiative from Resolution (formerly the Solicitors Family Law Association). This aims to help separating parents to put their children’s interests first. You should speak to us about how the Parenting After Parting initiative can help you and your children.
If you and your husband/wife cannot agree regarding arrangements for children it is possible to make an application to the Court for orders under the Children Act 1989. Such an application will be in separate proceedings from your divorce.
Will I have to go to Court about the division of assets and finances between my husband/wife and me?
Only the Court can dismiss any future claims that either you or your husband/wife may have against each other arising from your marriage.
Most separating husbands/wives reach agreement regarding division of assets and finances. An agreement can be turned into a “consent order” (a Court order whose contents are agreed between you and your husband/wife). You do not have to attend Court for a consent order to be made.
We can help you reach an agreement. This can be a difficult process as often finances that are enough for two people living together, whether with or without children, are stretched thinly when they separate. We are committed to the Resolution Code of Practice, which requires us to adopt a constructive and non-confrontational approach in family law matters.
If it is not possible to negotiate an agreement regarding your assets and finances, an application to the Court may be the only way of resolving disputes. We can assist you and represent you at Court.
Whichever way you and your husband/wife sort out financial matters, you will both have to give each other full and frank disclosure of all information relating to your finances. This is so that negotiations can take place and decisions be made on an informed basis. You have to know what assets are available before you can consider how to divide them.
You can find out more about financial issues on divorce and alternatives to court here and here.
I don’t want to divorce my husband/wife right now but I do want to sort out finances without any delay. Can this be done?
Yes. You can sort out finances and then divorce at a later date. To do this, we recommend negotiating a separation agreement. This can include provisions for either you or your husband/wife to initiate divorce proceedings after two years of separation.
If you are negotiating a separation agreement, it is important that both you and your husband/wife have legal advice and enter into the agreement freely. A separation agreement has to be in a formal document signed as a deed and you must both give each other full and frank disclosure of your financial positions. If any of these elements are missed out, the agreement between you and your husband/wife may be open to challenge at Court at a later date.
I was forced into an unfair separation agreement by my husband/wife. Can you help me overturn it?
If any of the factors described in the answer to the previous question are missing, especially if or you were put under pressure to enter into a separation agreement, or the agreement is so unfair that no Court would ever make an order in those terms, you may be able to challenge the agreement.
Such situations will vary significantly from case to case. It is therefore very important that you obtain advice from us regarding your position and rights without delay.
How long will my divorce take?
Most divorces take six to nine months from the date on which the divorce petition was sent to the Court. The exact length of time will depend on how quickly both you and your husband/wife deal with the divorce.
If there are proceedings at Court relating to your family finances these may take longer. Again, this depends on both you and your husband/wife. It also depends on the availability of time and Judges at Court. Financial proceedings can take a year to eighteen months or longer.
How much will my divorce cost?
This is impossible to say with any certainty. As with the timescale, a lot depends on the attitude that your husband/wife takes to the proceedings and any negotiations.
As general guidance only, our current standard hourly rate for family law services is £200 per hour plus VAT. This may be higher if there are any special aspects to your case, such as complicated issues arising due to the nature of your finances or any other matters.
A “stand alone” divorce with no work required in relation to family finances or arrangements for children normally takes around three to six hours of chargeable time. There are also Court fees to pay, which currently stand at £340 for issuing a divorce petition and £45 on application for the Decree Absolute (the Court order that ends your marriage).
For more information on the cost of and paying for family law advice, click here.
What is Resolution?
Resolution (formerly known as the Solicitors Family Law Association) is an organisation of specialist family law solicitors who commit themselves to taking a constructive, non-confrontational approach to family law matters.
Resolution supports the development of its members through its national and regional training programmes, its publications and good practice guides and through its accreditation scheme.
All Resolution members follow a Code of Practice. The Code promotes an approach to family law that is sensitive, constructive, cost-effective and most likely to result in an agreement. The Code is widely recognised and has been adopted by the Law Society as recommended good practice for all family solicitors.
What is the Resolution Code of Practice?
The Code requires members of Resolution to:
- Conduct matters in a constructive and non-confrontational way
- Avoid use of inflammatory language, both written and spoken
- Retain professional objectivity and respect for everyone involved
- Take into account the long term consequences of actions and communications as well as the short term implications
- Encourage clients to put the best interests of the children first
- Emphasise to clients the importance of being open and honest in all dealings
- Make clients aware of the benefits of behaving in a civilised way
- Keep financial and children issues separate
- Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional
- Inform clients of the options available – e.g., counselling, family therapy, roundtable negotiations, mediation, collaborative law and Court proceedings
- Abide by the Resolution guides to good practice
Are you a member of Resolution?
Greg Randall is a member of Resolution. If you would like to know more please contact Greg at [email protected]ttwelch.com or on 020 8670 6141.