Divorce

In the UK, anyone who has been married for at least one year can apply for a divorce. For some couples, the process is relatively simple as they may have no or minimal assets to divide and they agree that divorce is right for them. For others, it can be quite a complex and challenging time.

The rules relating to the dissolution of a civil partnership are almost identical to those relating to divorce.

The only ground for divorce in the UK is the “irretrievable breakdown” of the marriage which the applicant must then go on to prove to the court by establishing one or more of five “facts”:

• 1. adultery
• 2. unreasonable behaviour
• 3. desertion
• 4. two year’ separation with the consent of the respondent spouse
• 5. five years’ separation

It is common for the petitioner to cite the respondent’s “unreasonable behaviour” as this can cover most commonly experienced areas of difficulty.

This information must be presented to the court in the form of a Petition. The court will also need to receive a payment, currently £300.00, and the Marriage Certificate.

If you have children, it is also necessary to fill in and lodge another document known as a Statement of Arrangements for Children. The purpose of this document is to provide the Court with brief details of where the children live, where they go to school and the contact that is taking place or you intend to take place once the divorce is complete. The Court needs this information because it has to declare itself satisfied with those arrangements. It will not ordinarily interfere with arrangements that you have made with your spouse.

Once the Court has received the Petition, they will send an Acknowledgement of Service to both parties. The next step will then be to complete two further forms, the Affidavit in Support and the Application for Directions for Trial.

The Court will pronounce the Decree Nisi around 6 weeks later and a copy will be sent to both parties.

Then, 6 weeks later, the Petitioner can apply to the Court for a Decree Absolute of Divorce. The Court charge a fee of £40.00 for a Decree Absolute and once it is granted it means that your Divorce is final.

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Ancillary Relief

This is a term which refers to an application to the Court concerning property, money and/or children. The procedure will usually involve a court hearing to resolve certain disputes. Where the negotiations are complex, the parties may be represented by lawyers. If agreement is achieved, this is presented to the Court in the form of a Draft Consent Order which the Court can then approve. If the parties cannot agree, the Court will make its decision which the parties will then have to abide by.

It is important to note that an application for ancillary relief cannot be made once you have remarried.

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Clean Break Consent Order

This is an agreement drawn up between the parties to a divorce to deal with matters such as property, savings and child maintenance. Such an Order is only appropriate where the parties are in agreement.

By drawing up a clean break Consent Order and having it filed at court, each party is prevented from reneging on the terms of the agreement. Neither can therefore make any further claims on the other once the divorce is finalised. The act of filing it at court also ensures that the agreement is enforceable.

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Separation Agreement

This agreement is drawn up when two parties have decided to separate but do not immediately anticipate getting divorced. This may be because they would prefer to wait for 2 years to elapse in order to use 2 years’ separation to prove the grounds.

Such an agreement will deal with provisions for property (including cars), money, maintenance, business assets and gifts and will often stipulate a date when divorce proceedings should begin.

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Pre-nuptial Agreement

This is an agreement made by two parties in anticipation of a marriage or civil partnership. It sets out what the parties agree will happen if the marriage or civil partnership breaks down.

A pre-nuptial agreement commonly includes clauses covering property, maintenance, business assets, gifts and pensions.

Although not legally enforceable in England and Wales, pre-nuptial agreements are accepted by the courts as indicative of the parties’ intentions and will be taken into consideration in the event of divorce proceedings.

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Change of Name

Our legal team can help you to formally change your name by way of a sworn Statutory Declaration. There is no need to go to Court and the document will generally suffice as proof of your intention to be known by a different name.

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Parental Responsibility

In order to be in a position to legally make day to day decisions in relation to a child, a person must have Parental Responsibility (PR) for that child.

This is conferred automatically on the child’s mother and on the father as long as the parents were married at the time of the child’s birth or he is registered as the child’s father on the child’s birth certificate.

An unmarried father whose name does not appear on his child’s birth certificate does not have PR but can acquire it in a number of ways:

• 1. He can apply to the court for a PR order
• 2. He can apply to the court for a Residence Order which will automatically confer PR
• 3. He can apply to the court to be appointed as the child’s guardian
• 4. He can be appointed as the child’s guardian by the child’s mother or other guardian
• 5. He can make a “Parental Responsibility Agreement” with the child’s mother

CHILDREN ACT 1989 S8 ORDERS

Contact

Many couples find themselves unable to agree on suitable arrangements for contact with the children following a relationship breakdown.

Ideally, the two parties can be assisted in coming to an agreement which addresses the needs of the child or children and is convenient to all concerned. However, occasionally, there is some intransigence and it proves necessary to ask the Court to make an Order.

Such an Order will require the person who the child is living with to have contact (a visit or an overnight stay) with the person named in the Order.

An application is usually made by the party requiring contact, but it is also open for the party who the child lives with to apply to vary existing contact arrangements.

Residence

The purpose of a Residence Order is to formally settle the question of where a child is to live and with whom. The Order can be made in favour of more than one person, even when those people are not living together.

Children Act 1989 states that the following people have the right to apply for either of the above s8 Orders in respect of a child:

• 1. Any parent, guardian or special guardian of the child
• 2. Any person in who by virtue of section 4A has parental responsibility for the child
• 3. Any person in whose favour a residence order is in force with respect to the child
• 4. Any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family
• 5. Any person with whom the child has lived for a period of at least three years
• 6. Any person who –
  • i. In any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made
  • ii. In any case where the child is in the care of a local authority, has the consent of that authority or
  • iii. In any other case, has the consent of each of those (if any) who have parental responsibility for the child

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Domestic Violence

Where either party to a relationship experiences domestic violence, it is open to them to apply to the court for either a Non-Molestation Order or an Occupation Order or both.

Such orders can be applied for, with or without notice to the other party.

Non-Molestation Order

This seeks to prevent the Respondent from "molesting" the Applicant or any children. Molesting means harassing, pestering or interfering with n some way, and also includes assault.

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Occupation Order

These are orders which decide who should carry on living in the home in the short-term after there has been violence or harassment etc. The orders can be made to suit different circumstances. For example, to allow the Applicant to remain in the home if the Respondent is trying to force them out or to exclude the Respondent from the home.

Mediation Referral

Where appropriate, we can refer you to experienced mediators who can help you to resolve specific issues. In complex matters where parties cannot agree about provisions for children or division of assets, mediation can be very useful and significantly reduce your legal costs by facilitating agreement before you get to court. Please ask us for further information.

Other Matters

Family Law inevitably touches on other areas of law, many of which we have not mentioned on this website.

For example, divorce or the dissolution of a civil partnership may necessitate the severance of a joint tenancy in relation to the matrimonial home so that it is held as “tenants in common”. In these circumstances, the property will no longer automatically pass from one spouse to the other on death and it will be prudent to draw up new wills. There may also be Inheritance Tax and other financial implications that require expert advice. Our Private Client specialists are happy to assist by preparing your will, if necessary.

Similarly a couple may have business interests that require specialist attention following a relationship breakdown or in order to drat a financial agreement.

Rest assured, our Solicitors are very experienced and are able to provide expert guidance in relation to all these matters. Our rates are very competitive and we would be pleased to hear from you.

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