Divorce & Cohabitation
Divorce and Separation
It is unfortunate that in modern times marriage is not always forever, and relationships break down. With more people cohabiting there is also seen a rise in partnerships breaking down also. The law in relation to married and a non-married couple is different, particularly when dealing with the financial settlement. It is most important that you get good advice on your options, when difficulties arise.
Divorce is one of the most stressful and traumatic events that a person can experience. At this time, you are likely to be in a highly emotional state and it is important that you have the right support and advice to help get you cope with the important decisions that face you. This is particularly important when there are children and finances involved and we aim to address all issues in as constructive a manner as possible
You must have been married for at least one year. If the marriage has subsisted for less than a year, there is another option available, that of applying for a judicial separation. This is quite rare and you should seek advice from a solicitor if you would like further information.
There is only one ground for divorce. You must show the Court that the marriage has broken down irretrievably. To prove this, you have to rely on one of 5 facts:-
- Unreasonable behaviour
- Desertion for a period of two years or more
- Two years separation and mutual consent of the parties
- Five years separation
One party will file a Petition with the Court. A copy of that Petition is served upon the other party, together with an Acknowledgement of Service form which should be signed and returned to the Court. The next important step in the procedure will be for the pronouncement of the Decree Nisi, which is the penultimate stage of the divorce. Six weeks and one day after the date of the Decree Nisi, the Petitioner (the person who has served the Petition in the first place) may apply for the Decree Absolute. The Decree Absolute finally ends the marriage.
The time that it takes for a divorce to conclude varies. If the Divorce is simple and straight forward and both parties co-operate, the matter can be concluded in about 4-6 months. However, if there are complex financial issues or children matters that need to be resolved, or the other party is obstructive, it may take considerably longer.
We will be able to advise you as your matter progresses as to the estimated timescale to conclude matters.
We offer a standard fixed fee of £600 plus VAT to act for you as the Petitioner in your divorce proceedings. Please note there is also a Court fee in addition to this which is currently £550. This figure is set by the Lord Chancellors Department and varies from time to time.
If you wish us to act for you as the Respondent in the Divorce proceedings, we can offer a fixed fee arrangement of £300 plus VAT.
Please note that this arrangement does not include any additional work that might be entailed such as an application for Bailiff or Deemed Service or a defended divorce. It also does not include the cost of obtaining a replacement marriage certificate or any advice given or work undertaken on children or financial matters.
Legal Aid is scarcely available these days for private family proceedings, however, where there is evidence of domestic abuse (certain criteria is required) Legal Aid funding is available to deal with all aspects of Divorce, Dissolution of Civil Partnership, financial Settlement, and Children’s Matters. For other funding please see our Funding Page.
When relationships break down it is important to consider carefully your future. Divorce and dissolution of partnership may not be the best option for you, for a variety of reasons. If you do not wish to proceed with the legal dissolution of your relationship, it is possible to address and agree the financial matters and incorporate them in a deed of separation, which will be enforceable on any future legal proceedings that may be taken, in relations to the financial settlement of the relationship.
Domestic abuse is always a difficult and emotional situation where the victim is often frightened and controlled into believing that it is their fault. Often the emotional ties of children and financial uncertainty prevent an abused person from leaving a relationship.
There are several organisations available to assist people from leaving abusive relationships. Some examples of these organisations are, Women’s Aid, The Local Police and Social Services.
It is also possible to make an application to the court for an injunction to protect a person from abuse, and in certain circumstances the court can order the abuser to leave the home temporarily so that the victim can take the steps required to leave the relationship.
Finance is often the factor that prevents someone leaving a relationship. However, there are applications that can be made within Divorce, and Dissolution of Partnership, that can provide maintenance pending the legal position being resolved.
If your civil partnership has broken down, the procedure for ending the relationship is very similar to that of divorce proceedings. The main differences are that the process is called “Dissolution” and not “Divorce” and you cannot rely on the fact of adultery as evidence to prove the breakdown of the relationship.
Change of Name Deed
Often if people are divorcing or separating, they want to revert to their former name or perhaps they simply do not like the name that they have!
If you are over 16 you may change your Surname by way of a Change of Name Deed.
A Change of Name Deed can be drafted very quickly, within a matter of days. You can start using your new name as soon as you have signed the Change of Name Deed. Please note that you will need to change all of your other forms of identification as well and you may find that institutions such as banks and the DVLA and Passport Agency may want to see the Change of Name Deed or a certified copy.
You cannot change your child’s name without the consent of both parents or the permission of the Court. If the other parent refuses to give consent to a Change of Name you can make an application to the Court, but you would have to show there is a good reason as to why your child’s name should be changed.
If a mother is not married to the child’s father, and he does not have parental responsibility she can legally change a child’s name but this is somewhat frowned upon by the Court. In such an event, the father could make his own application to the Court for the name to be reverted back to the original.
Today, over 3 million couples have chosen to cohabit. This is the fastest growing family type in the UK and accounts for 17% of families.
If you are going to buy a house to live in together you need to consider whether the house is going to be purchased in joint tenants in common or in the sole name of one of the parties. If you are going to purchase the property in joint names, it is important that you record your individual contributions towards the purchase of the property, particularly if one of you is going to put in more than the other. If you do not make this clear, then it will be deemed that you own the property in equal shares and if the property is subsequently sold, you will receive half of the available equity in the property.
If renting a property, you also need to consider whether you want to rent as joint tenants or hold the tenancy in the sole name of one of the parties.
If you decide to set up a joint bank account, you should remember that liability is joint and several so if the account becomes overdrawn, each of you is liable for the whole of the debt. This situation is the same with any joint loans that you may take out.
You should also both consider making a Will, especially if there are children involved in the relationship.
This is an agreement that is made between the parties who are intending to cohabit, setting out what contributions have been made by each party and what should happen in the event that they separate. It is important that his agreement is prepared by professionals who know the law, and that both parties are separately advised on the terms of the agreement.
Unless there is an alternative agreement in place, each cohabitee is entitled to 50% of the net proceeds of sale. If one partner refuses to sell the other can make a claim to the Court under the Trusts of Land and Appointment of Trustees Act for an Order to force the sale of the property.
It is possible that you may have some claim on the property if you can prove that you have made significant contributions by way of mortgage payments or substantial home improvements; however, it can sometimes be quite difficult to prove such matters and usually will have to be resolved by the Court.
Some people prefer to separate without divorcing or ending their civil partnership. This may be for a number of reasons, for example, they may have religious objections to divorce or perhaps they have no particular wish to divorce quickly.
Nonetheless, it is likely that there will still be issues that need to be addressed, in particular with regards to children or property and financial matters. It is important for the parties to decide how any assets of the marriage or civil partnership are to be divided, what they would wish to do if there are going to be divorce proceedings in the future, and of course what arrangements are to be made for any children, such as who they will live with and when they will see the other parent.
All of these issues can be dealt with by the parties entering into a Separation Agreement, otherwise known as a Deed of Separation. The issues that are dealt with in a Separation Agreement are similar to those that would be addressed in the divorce process, such as how the assets of the marriage are to be divided, how any debts are going to be dealt with, child maintenance and child care arrangements.
A Separation Agreement will protect the parties’ interests until the Divorce process begins, and whatever has been agreed in that document can be the basis of any future settlement so it is important that both parties are happy with what they have set out in the Separation Agreement.
If the parties enter into a Separation Agreement, they do not have to go to Court. Private agreements between the parties that are drawn up by solicitors are very common and are a more amicable and cheaper way of dealing with matters.
Civil partners and cohabitees whose relationships have broken down can also enter into a Separation Agreement.
Pre and Post Nuptial Agreement
Most people’s conceptions of pre-nuptial agreements come from what they have seen on US television shows! However, with the divorce rate in the UK now so high, many people are anxious to protect what assets they have, especially if they have been married previously or if they have significant business assets or inheritance prospects.
A couple can have an agreement drawn up between them after they marry or enter into a civil partnership. It details how they will divide their assets in the event of divorce, separation or even death.
A Pre-Nuptial Agreement records and regulates any financial claims that might arise out of the breakdown of the marriage. It will address any potential matrimonial issues that might arise following the breakdown, including matters such as ownership of the matrimonial home, pensions and maintenance payments. The agreement will also record the rights of the parties in relation to any property, assets or debts in their sole names or which they already held prior to the marriage. The agreement can also deal with matters such as existing family commitments for example, children from a previous marriage.
Both parties will need to see a solicitor separately for independent advice.
Both parties must provide full disclosure of their circumstances, declaring all of their assets and their current financial position as well as considering any possible future circumstances such as inheritance prospects.
At present, the Courts in the UK will give very serious weight to the provisions of a Pre-Nuptial Agreement, but they will vary its’ terms if they consider that it does not meet one parties financial needs or appears to be unfair. However, if the agreement meets certain requirements and would produce a fair outcome for both parties on the breakdown of the marriage, it is likely to be upheld.
The agreement must have been entered into without any undue influence of one party on the other, and without any misrepresentations having been made by one party to the other. The agreement must be in the form of a Deed and signed by both parties. It must also have been entered into 28 days prior to the wedding or civil partnership ceremony. The agreement must declare that both parties have provided full and frank disclosure of their personal and financial circumstances and that each has had the benefit of independent legal advice.
There are a number of matters to consider when discussing with your partner whether you need a Pre-Nuptial Agreement. Questions that you might wish to ask yourself are as follows:-
- Do I want to protect my property if the marriage fails?
- Do I have a large number of assets to protect?
- This is a second marriage so do I want to protect any assets or claims that I have secured from the first marriage?
The advantages of entering into a Pre-Nuptial Agreement are that it can save time and costs in the long run if the marriage fails; it provides financial security and certainty for both parties, and can protect the family or other assets that have been acquired before the marriage.
All of the assets brought into the marriage by the parties will become matrimonial assets and potentially could be equally divided in the event of the marriage breaking down.
Same sex couples can enter into a Civil Partnership Agreement which has the same effect as a Pre-Nuptial Agreement.
Essentially, the two are the same, except one is drawn up after the marriage. The information contained in them is very similar.
As with a pre nuptial agreement, it is sensible to review a post nuptial agreement periodically, especially if the parties circumstances change e.g. children come along, or one party receives an inheritance etc.
Matters that the parties might wish to consider would include:-
- Are the assets in question owned jointly or individually?
- How would any outstanding debts be repaid in the event of the marriage breaking down?
- What about the income of the parities?
- Are there any inheritances expected?
- What would happen to any personal or jointly owned belongings?
- Should the parties consider making Wills?
- How would they want any property or properties to be divided in the event of the marriage breaking down?
- How are any insurances to be dealt with?
Once Divorce or Dissolution proceedings commence, the parties have to consider financial matters with the aim of achieving an outcome that is satisfactory to both and which enables them to move on with their lives independently, or as independently as possible.
There is no “one size fits all” solution when negotiating financial matters and every case as to be looked at differently.
Various options are available to as to how a settlement can be reached; the parties may choose to conduct negotiations between themselves, either with or without the help of solicitors, or through mediation or ultimately through the Courts.
Whichever way the parties choose to deal with the process, they both need to be totally honest with one another and provide full and frank financial disclosure of all their assets, whether held in sole names or jointly.
In the event that a settlement cannot be reached through negotiation or mediation the Family Court will resolve the dispute and will make whatever Orders as are necessary to deal with issues such as what is to happen to the family home, any lump sum payments to be made to one or both parties, spousal maintenance and pensions.
When considering financial issues relating to divorce, the view of the Court is that the welfare of any children must be the primary consideration and every possible effort will be made to ensure the children and the parent with care are securely housed.
In many marriages, the family home is the major or only asset. One party may be anxious for the property to be sold so that he or she can have their share. In some circumstances, the Court may decide that the sale should be delayed until the children are independent (usually when they have left school). At that time, the property will be sold and the proceeds of sale will be divided on a basis to be agreed. The party remaining in the house with the children would normally take on responsibility for the mortgage.
Of course the other party may not find this to be the most attractive solution to the matter, but the welfare of the children must come first.
In cases where one party is likely to suffer hardship through being on a low income, the Court can assist. A common example is where a wife has not worked for a while and has to get back into the workplace, or she can only work part time for various reasons or her work and income prospects are limited through disability or other difficulties. In such circumstances, the Court may make an Order for Spousal Maintenance to support that party in his or her transition into a new life style. Such Orders would normally be time limited e.g 2, 3 or 5 years.
Pension sharing and attachment Orders allow the transfer of part of one spouse’s pension to the other. The entitlement is calculated on the current pension built up during the course of the marriage. The pension will not be payable until retirement which may be many years in the future.
Some pension schemes will not allow a transfer out to another scheme. Some people may prefer to take a lump payment in lieu of a pension share so that they can set up their own scheme or make provision for their retirement by way of other savings schemes and investments. The pension holder may also find this a preferable option to the prospect of a reduced pension in later life.
If both parties have pensions, pension sharing may still take place so as to equalise provision as far as possible, or the parties may choose not to pursue pension shares, preferring to find other ways to resolve the matter using other available assets.
The Court will always try to resolve financial disputes on the basis of fairness and need. Marriage is a partnership of equals and when it ends the aim is for the parties to receive an equal share of the assets available unless there are very good reasons as to why this should not be the case. The Court looks at the contributions made by each party to the marriage. These contributions are not limited to financial contributions. They include all contributions to the welfare of the family, such as leaving work to care for children, or if the parties have chosen to have a more traditional type of marriage where the husband has been the breadwinner and the wife stayed at home, she should not be disadvantaged because of that.
We would always advise that the parties should enter into a clean break Order even if at the time of the divorce or dissolution there are no assets to speak of. Such an Order means that any further claims that the parties might wish to bring against each other will be dismissed, both now and in the future so each is financially free of the other. This prevents the scenario arising where at some future point one party has an upturn in their fortunes, and the other decides to make a claim against him/her. Recent cases in the media have highlighted this, where ex-spouses have made claims years after a divorce and have succeeded in those claims.
However, if provision has been made for spousal maintenance or pension sharing Orders, it is only possible to achieve what is known as a partial clean break (“as to capital only”) but this will ensure that other future capital assets will be protected.
If you have any further questions or require more information, please do not hesitate to contact us.