Some frequently asked questions and guides on Financial Settlements.
- When should I seek advice?
Getting divorced or dissolving a civil partnership can be an emotional and difficult time, without having to negotiate its confusing legal formalities. Dads may worry about losing contact to their children or achieving a fair financial settlement.
We at Dadds LLP will support you through the divorce process, and will give you advice that you can trust about the things that matter most - your children and your financial security.
You should seek our advice urgently if:
- your former partner is not allowing you contact to your children
- you are at risk of having nowhere to live
- you have a lot of assets
- you are unsure what a fair settlement between you would look like
- you are at risk of domestic violence or abuse
- you are in a vulnerable financial position compared with your former partner
- you got married abroad, or you, your former partner or your children have non-UK nationality
If you are at risk from domestic abuse, our priority will be to keep you or your children safe.
- What do I need to bring with me to my appointment?
To achieve a thorough understanding of your circumstances, we will ask you for a variety of details and documents.
These could include:
- the reasons you want a divorce;
- if you are living apart from your wife or husband
- when you separated
- the names and ages of any children who are part of the family
- the children’s current and future living arrangements
- the current contact arrangements between parents and children
- a list of your assets, savings, income and pension arrangements, and those of your wife or husband
- details of any liabilities or debts
- details of any domestic abuse
- your marriage certificate; and any other relevant documents
- names and dates
This will help us to decide what grounds there might be for a divorce and what other options might be available to you. They will also help us to estimate what the timescales, costs and results of your case might be.
- Who can get divorced?
You can start proceedings if you: Have been married for one year or more and either party is currently living in England or Wales, or has been for the year prior to the application.
It does not matter where the actual marriage took place and your marriage has ‘irretrievably broken down’. To prove that your marriage has ‘irretrievably broken down’, you must establish one of the following facts:
Adultery - your wife or husband has committed adultery and you now find it intolerable to live with them. This fact does not apply to Civil Partnerships;
Unreasonable behaviour - your husband or wife’s behaviour is such that you cannot reasonably be expected to live with them. Unreasonable behaviour could be anything from allegations of domestic violence/verbal abuse to neglect.
Desertion - your wife or husband left you at least two years ago, without good reason. Two years’ separation with consent - you have been separated from your wife or husband for two years and they agree to the divorce; or Five years’ separation - you have been separated from your husband or wife for five years or more.
Either party can apply for a divorce without the agreement of the other party We will be able to give you more details of each of these sets of circumstances. If a divorce decree is against your religion, we can give you advice about other forms of separation.
- What is involved in the divorce process and how long does it take?
To start the divorce, you’ll need a Petition which we can prepare for you. We can take you through the process of obtaining a Decree Nisi, and finally the Decree Absolute. It usually takes about three months for the Court to pronounce a Decree Nisi. This means that you are entitled to a divorce.
You then have to wait another six weeks and one day before applying for a decree absolute. Once you have this, you are officially divorced and free to remarry if you wish.
- What is included in the divorce petition?
A Petition is compiled by completing a Form D8. The party applying for the divorce is known as the Petitioner, the other party the Respondent. The final section, known as the ‘prayer’, which asks for the divorce to be granted, also deals with the question of who should pay the costs of the divorce and what financial claims are being included. Often the Petitioner requests every type of financial provision detailed in that Form.
This is usually advisable for procedural reasons and it does not mean that each claim will be pursued. We normally try to agree the contents of the Divorce Petition before it is sent to the Court to avoid argument later. We can advise you on what particulars of behaviour will be acceptable to the Court to show that your marriage has irretrievably broken down.
If your Divorce Petition is based upon adultery it is not necessary to name the third party to the Petition, and usually best not to. A completed Divorce Petition is sent to the Court, together with the marriage certificate. A Court fee (at present £550.00) has to be paid at this stage unless the Petitioner is exempt from paying the Court fee because of low income. Within a few days of receiving the Petition the Court will send a copy of the Petition to your wife or husband for their reply.
The Respondent has 7 days to complete and return the acknowledgement of service to the Court indicating whether they agree to the Divorce or intend to defend it. Most cases are undefended but if the Respondent intends to defend the Petition they must file a defence, known as an ‘Answer’, within 28 days of receiving the Petition. If an Answer is filed, the proceedings then become defended and the usual timetable does not apply.
The Court will list the case for a short hearing where it will expect the parties to try to agree how the case can proceed without a full Court hearing. Only rarely do defended proceedings result in a full Court hearing, but a delay inevitably occurs in finalising the divorce. If the Respondent or Co-Respondent fails to return the acknowledgement of service, you will need to prove that they have received the Petition. It may be necessary to arrange for someone to personally serve them with the papers, or ask the Court for directions. In some cases, there may be other evidence that they have received the Petition, such as a letter mentioning the contents and this can be used to prove service.
Exceptionally the Court might agree to dispense with service altogether.
- What happens next?
Once you have received a reply to the Petition, and assuming it is undefended, you will need to confirm your intention to go ahead with the divorce application by making a statement confirming the Divorce Petition is true. Your application is then lodged with the Court together with a request for a date for the Decree Nisi to be pronounced.
Once the Court is satisfied that you should have a divorce, it sets a date and time for the judge to pronounce the ‘Decree Nisi’. You do not need to go to Court for this. It is simply a statement from the Court that the divorce can go ahead and the divorce papers are approved. You are not actually divorced at this stage. If at this point you have not agreed who should pay the legal costs of the divorce, the judge pronouncing the Decree Nisi will make the decision for you. The Decree Nisi is then granted and a sealed copy is sent to both parties.
- When is my divorce finalised?
Six weeks and one day after the Decree Nisi, the Petitioner can have the divorce made ‘absolute’. This legally dissolves the marriage. However, we usually advise you to wait until financial matters have been settled before finalising your divorce in this way. The Decree Absolute is usually made within a few days of application and the marriage is then dissolved.
The Court will send both parties a sealed copy of the Decree Absolute. If the Petitioner fails to apply for the Decree Absolute, the Respondent may do so 3 months after the date when the Petitioner could first have applied. We would notify the Petitioner of this application and both parties will usually need to attend Court when the judge considers the application.
The judge may refuse or adjourn the application if, for example, financial matters have not been resolved and the Petitioner would lose important legal or financial rights if a decree is granted.
- What happens if we cannot agree on arrangements for the children or financial matters?
Unfortunately, divorce isn’t just about dissolving your relationship. There are other factors you will need to take into consideration. Financial issues, including property, maintenance and pensions Children and the arrangements for their care The Court will not generally consider children or financial issues within divorce proceedings unless specifically requested to do so by one of the parties to the divorce.
You will need to discuss with us whether any action needs to be taken in respect of children or financial matters. Certainly, before agreeing matters, it is wise to seek our advice about your rights and the options available to you, to ensure arrangements are as fair as they can be. Our Guides, which you can access clicking on the links above, give further details.
- What if I do not want to divorce but just separate?
Sometimes, for example, for religious reasons, a couple may not wish to divorce but merely to formalise their separation. A Petition for Judicial Separation does not dissolve the marriage. It formalises the separation and allows an application to be made to the Court for some, but not all, of the financial orders that the Court could make in connection with that divorce. For instance, the Court does not have power to make a pension sharing order following Judicial Separation.
The procedure is very similar to obtaining a divorce and the same facts have to be proved. Given this, and the fact that obtaining a Judicial Separation is neither quicker nor cheaper than a divorce, most people make the decision to proceed with divorce. Judicial Separation is however useful when religious beliefs prevent divorce. For separation to count towards periods of time for divorce (see above), the separation has to be substantial.
If you decide to remain living in the same household, with a view to applying for a divorce in the future, you should take our advice as to what the Court is likely to treat as living separately before making any decision about living together in the same property.
- How much will it cost?
Our charges will depend on the difficulty of the case. We will provide you with as accurate an estimate as we can at the outset of your case and will seek your agreement as to any revisions of this estimate. The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.
The law is always changing and affects each person differently. This information is no substitute for specific advice about you personally and we will not be liable to you if you rely on this information.
You’re welcome to contact us for an initial chat at no charge and with no obligation. It’s an opportunity to discuss your situation, run through your options and assess the likely costs involved. Call us today on 01277 631811 or use the contact form on our site for more information on how Dadds LLP Family Law Solicitors can help you.