The law relating to divorce is due to change in April 2022. It may be easier to obtain a divorce after that date. Please contact us for advice about this.
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:
- that your spouse has committed adultery and you find it intolerable to live with him/her*
- that your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her
- that your spouse has deserted you for a continuous period of at least two years
- that you and your spouse have lived apart for a continuous period of at least two years and your spouse consents to a divorce
- that you and your spouse have lived apart for a continuous period of five years.
* Adultery can only be committed with a person of the opposite sex.
What constitutes “behaviour”?
Fact (2) above is sometimes referred to as “unreasonable behaviour”, although this is misleading, as the behaviour of your spouse does not have to be directed at you or blameworthy. For example, if their behaviour was a result of illness or arose because you have grown apart, this could possibly be sufficient to obtain a divorce. The behaviour could be “low-level” over a period of time. Explosive outbursts or potentially harmful conduct are not required. The context and the circumstances of you and your spouse can be important.
My spouse 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 spouse for more than six months after discovering it.
How do I get a divorce?
The Court grants divorce. Filing a divorce petition at Court starts the process.
- There is a lot of complicated law connected to divorces, so it is easy to make mistakes when drafting a divorce petition unless you know exactly what you are doing.
My spouse 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 acknowledgement 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 spouse 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 being “abroad” for these purposes as they have legal systems separate from that of England and Wales.
My spouse lives abroad. Will this make a difference to my divorce?
If you and your spouse 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 spouse 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 spouse will threaten or harm you, you should speak to us about obtaining a Court order for your protection.
- It is sometimes the case that spouses take offence if they think a divorce petition is unfair to them. It is usually possible to agree on 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 spouse 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 spouses 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 of separation you will need your spouse’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 spouse?
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 I have to pay my spouse’s legal costs when he or she divorces me?
A Petitioner for divorce asserting adultery, unreasonable behaviour or desertion can seek a Court order that the Respondent pays his or her legal costs.
Often, if the divorce is agreed the spouses also agree that neither shall pay towards the other’s costs or that all or some of the costs shall be shared. This does not affect costs relating to financial matters, which are dealt with separately.
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.
- If you and your spouse 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 separate from your divorce.
Will I have to go to Court about the division of assets and finances between my spouse and me?
- Only the Court can dismiss any future claims that either you or your spouse may have against each other arising from your marriage.
- Most separating spouses reach agreement regarding division of assets and finances. An agreement can be turned into a “consent order” (a Court order the terms of which are agreed between you and your spouse). 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.
I don’t want to divorce my spouse right now but I do want to sort out finances without any delay. Can this be done?
- You can sort out finances at the time of your separation and then divorce at a later date. To do this, we recommend negotiating a separation agreement. This should be in formal legal terms, as a “deed under seal”. It could include provisions for either you or your spouse to initiate divorce proceedings after two years of separation.
- If you are negotiating a separation agreement, it is important that both you and your spouse have legal advice and enter into it freely. A separation agreement must be signed without any pressure being exerted on one spouse by another, with each spouse at least having the opportunity to take legal advice, 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.
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 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 spouse 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 spouse. It also depends on the availability of time and Judges at Court. Only a minority of financial proceedings go to a final hearing, but this 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 spouse takes to the proceedings and any negotiations.
- As general guidance only, our current standard hourly rate for family law services is £240 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.
- We offer fixed fees for the steps required to secure divorce from the court if it is undefended and there are no problems, such as those that can occasionally arise regarding service of the divorce petition. There are also Court fees to pay, which currently stand at £550.00.
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 in 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. It can be found at www.resolution.org.uk.
These FAQs are general guidance as to the law only and are not intended to replace the advice given by a fully instructed specialist solicitor. Bennett Welch accepts no liability arising as a consequence of reliance on these notes as a substitute for such advice from us.
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