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Divorce Questions

SA Law’s family team have compiled an extensive list of frequently asked questions related to divorce – for those at any stage of a relationship breakdown covering every concerns you may have from how divorce works, things to consider if you have children,  to how it divorce can affect your finances and property.

If you have any questions or would like to speak to a member of our Family team, please do not hesitate to get in touch.

Thinking about divorce or have divorce questions?

1. What grounds can I give for wanting a divorce?

For the court to grant a divorce, you will need to show that your marriage has irretrievably broken down.

This means proving one of the following things – also known as giving the fact for divorce:

  • Adultery
  • Your partner has behaved unreasonably
  • Your partner deserted you at least two years ago
  • You and your partner have lived apart for two years – if you both agree to the divorce
  • You and your partner have lived apart for five years – if only one of you agrees to the divorce.

There is only one ground for divorce – irretrievable breakdown. This is proved by one of the facts listed above.

2. Are there any reasons why I might not be able to get a divorce?

Yes. You won’t be able to get a divorce until you have been married for at least a year. Your marriage also needs to be legally recognised in the UK in order for the court to grant you a divorce.

In addition, you must have a permanent home in England or Wales. (Scotland has its own legal system, and to get divorced there you and your partner will need to satisfy a Scottish court’s residency rules.)

Finally, you will need to prove to the court that your marriage has irretrievably broken down by citing one of the facts mentioned above.

3. How much is getting divorced likely to cost, and what are my funding options?

There are various costs associated with getting divorced, and every case is different – so it’s difficult to predict the cost of getting divorced with any certainty.

A full breakdown of the court fees you may have to pay is available on the government’s Money Advice Service website or the Justice website.

In addition, you may have to pay for a solicitor and / or a barrister. Many people choose to seek professional legal advice when getting divorced to ensure their interests are properly protected. How much advice you need, and how much it costs, will depend on the complexity of your divorce case and on the fees charged by the legal firm you choose.

Typically, it is expected that each partner will pay their own legal fees when getting divorced. The petitioner will always have the option to claim the divorce costs against the respondent when the petition is filed. If the petitioner seeks a contribution to their costs, the level of contribution is often agreed by consent. If costs cannot be agreed, the court will have to determine the contribution – however in the case of an adultery or unreasonable behaviour petition, the petitioner is normally entitled to recover all of the costs in the main divorce.

You can’t get legal aid for divorce unless you can prove you are the victim of domestic violence or domestic abuse. However, if you think you might be entitled to legal aid you can find information on how to claim it on the Gov.uk website. You might also find it helpful to contact Citizens Advice or the Legal Services Commission.

You may need to borrow money to cover the cost of your divorce. In some circumstances litigation funding – a loan specifically designed to cover legal fees – might be available, but these are quite rare. Ask your solicitor for more information.

Alternatively, if your partner earns a lot of money, if you are not entitled to legal aid and if there is no other way for you to cover the cost of your divorce, you may be able to ask the court for a maintenance agreement that requires your ex to contribute to your legal fees while a permanent financial settlement is being worked out.

4. Will I need a solicitor or a barrister to get divorced?

Some couples find they are able to negotiate their divorce calmly and quickly. In cases like these, it might seem that involving solicitors is unnecessary – although it is probably a good idea to have at least one meeting with a legal professional to ensure you are fully aware of your rights and confirm that your interests are properly protected.

If emotions are running high and your divorce process is more difficult, involving legal professionals from the beginning could help to make negotiations smoother.

Most people only need to use a solicitor during their divorce but if your case is complicated (for example if the facts of the divorce or costs are disputed) and you need to go to court, you may also wish to instruct a barrister. He or she will act as your advocate during hearings.

5. Will I have to appear in court in order to get a divorce?

Not necessarily. In many cases you will be able to get a divorce without appearing in court.

If you and your partner both agree to the divorce, and if you are in agreement about who should pay for it, the judge in your case is likely to pronounce decree nisi and decree absolute in your absence. Likewise, if you reach a financial settlement that you are both satisfied with, you probably won’t need to go to court.

On the other hand, if one partner does not agree to the divorce or if it is difficult to reach a financial settlement you both consider fair, you may be required to attend court.

 

How divorce works

6. How does the divorce process work, and how long will it take?

There are three main parts of the divorce process: filing for divorce, obtaining your decree nisi and obtaining your decree absolute.

Depending on how amicably you and your partner can negotiate your divorce, it is reasonable to expect that you might obtain your decree absolute around six months after first filing for divorce.

However, if one partner does not agree to the divorce, if you find it difficult to reach a financial settlement and if you struggle to agree on who should look after your children, your divorce is likely to take longer.

7. How do I start divorce proceedings?

To start divorce proceedings you will need to file a divorce petition.

You’ll need to prove that your marriage has irretrievably broken down, giving your grounds for divorce on the divorce petition form when you fill it in.

If you have children with your spouse, you will also need to fill in a form giving information about any arrangements you have made for their care and financial support after the divorce is final. If these arrangements are not satisfactory for any reason, your divorce will be delayed.

You will need to send three copies of each form you have filled in to any county court that deals with divorce. Choose a local court if possible, as there is a chance you may need to attend hearings during your divorce and any possible financial proceedings.

If your partner was unfaithful to you and you’ve named the person he or she had an affair with on your divorce petition form, you will need to send a fourth copy of this to the Court. The person you have named will receive a copy of the form.

Finally, you will need to pay a court fee when you file for divorce.

To download a divorce petition form and for more information, visit the Gov.uk website or HM Court & Tribunal Service.

8. What is a decree nisi, and how do I get one?

A decree nisi is a document that states the court does not see any reason why you can’t get divorced.

To apply for a decree nisi you will need to fill in a form. At the same time, you’ll be required to complete a statement form that refers back to the grounds you have already given for seeking a divorce.

If your partner agrees with the divorce, it’s likely that the judge will issue a decree nisi without the need for you to go to court.

On the other hand, if your partner contests the divorce you will have to attend a court hearing to discuss your case. The judge will decide whether or not to grant a decree nisi once you and your partner have provided more information about your relationship.

If you are granted a decree nisi, you’ll be sent a certificate of entitlement to a divorce, your decree nisi document and, if applicable, a form that states making arrangements for any children you may have is not a reason to delay divorce proceedings.

Should your application for a decree nisi be rejected, you’ll be sent a form telling you why you can’t get divorced. You will also be given information about what you should do next.

To download a decree nisi application form, visit Gov.uk.

9. What is a decree absolute, and how do I get one?

A decree absolute is a legal document that officially ends a marriage. To get one you will need to fill in an application form.

However, you must wait for at least six weeks and one day after receiving your decree nisi before applying for a decree absolute.

If your partner started divorce proceedings against you but for some reason has not applied for a decree absolute, you can do so instead. However, you will need to wait for three months on top of the usual six weeks before filling in the form. Because of important intestate rules, it is best practice that decree absolute should not be applied for until any financial claims have been settled.

Once the court is satisfied that there is no reason to refuse you a decree absolute, you and your partner will both receive a copy of the document. It is important to keep this safe as you will be required to produce it should you ever wish to remarry.

To download a decree absolute application form, visit Gov.uk.

10.Will my ex have to pay my costs if I petition for divorce?

Probably not. In divorce cases there is a presumption that both partners will pay their own costs, irrespective of who starts divorce proceedings.

In extreme circumstances, the court may require that your partner pays your costs as well as his / her own – but this is rare.

Alternatively, if you are unable to pay your own costs and are not entitled to legal aid, it could be that the court will ask your better off partner to contribute to your legal fees through maintenance payments until a final financial settlement has been agreed.

 

Reactions to divorce

11.What is the difference between an undefended and a defended divorce?

An undefended divorce is a divorce where both partners agree to end their marriage.

One partner will start divorce proceedings, and the other will accept this when they respond to the divorce petition they are sent by filling in the acknowledgement of service form they receive.

A defended divorce is where one partner does not agree with the divorce petition they are served by the other, and chooses to defend it – again by stating this on the acknowledgement of service form.

Undefended divorces are usually final around six months after proceedings first begin – whereas defended divorces may involve more difficult negotiations and take longer.

12. What if I don’t agree with the divorce petition I’ve received from my partner?

If your partner has started divorce proceedings against you and you disagree with the divorce petition for any reason, you can choose to defend it. You can do this when you fill in the acknowledgement of service form you are sent by the court.

You will also be required to explain why you are defending the divorce within 21 days of returning the acknowledgement of service form. In addition, you may be required to pay a court fee.

Alternatively, if you believe you have the legal grounds to do so, you could choose to start divorce proceedings against your partner. If you do this, you will probably be required to pay a court fee.

13. What if my partner defends my divorce petition?

If your partner defends your petition for divorce, it is likely that your divorce will take longer.

You can still apply for a decree nisi – the document that effectively gives you permission to get divorced – but you and your partner will be required to attend a court hearing to discuss your case before it can be granted.

If a decree nisi is issued you will be able to continue with the divorce process. If it isn’t, you will be given information about why and what to do next.

14. Given the breakdown of our marriage, should I make a new will?

Yes. If you have divorced or are in the process of divorcing your partner, it’s important to review your will and make any necessary changes to it as soon as possible.

This is because – while it isn’t a pleasant thought and may seem unlikely – you could die before you obtain your decree absolute. Under these circumstances, your partner could claim an inheritance from your estate despite the breakdown of your marriage. Consideration will also be given to serving any interest in jointly owned properties.

In addition, if your current will appoints your spouse as executor, your divorce from him or her will invalidate this.

Finally, in light of your divorce you may need to review who you have appointed in your will as guardians for any children you have, should anything happen to you before they reach adulthood.

 

Your finances, property and possessions

15. Will we need a court order to divide up our property and possessions?

Yes – it is certainly a good idea to get one.

While you may not need to go to court in order to reach agreement on who will get what once your divorce is final, it is a good idea to seek advice from a legal professional who can ensure your interests are protected during negotiations.

Once you and your partner are both happy with the financial settlement you’ve drawn up, you should apply for a court order that confirms it. This will make your agreement legally binding and protect you against any future financial claims from your ex.

The Money Advice Service offers a divorce and separation calculator that you might find useful when trying to agree a financial settlement with your partner.

16. Will I still have to support my partner financially if we get divorced?

Possibly. Even if you do not have any children, the court might order that you pay spousal maintenance to your ex.

Maintenance is payable by the person with the highest income to the partner who is financially worse off – but only where their ex is unable to support themselves without it.

The calculation of maintenance payments can be complicated. How much you are ordered to pay will depend on many factors, including your income and the length of your marriage.

These factors will also affect how long you are required to pay maintenance for.

17. Once my partner and I have made an agreement on maintenance, is it final?

Not necessarily. The amount of maintenance you have to pay to your ex can be adjusted up or down, depending on circumstances.

If you were to lose your job or retire, the amount you had to pay your ex partner would decrease accordingly. On the other hand, if your income rose significantly it could be that your maintenance payments would rise too.

If the person receiving maintenance gets a job after a period of unemployment, or enjoys a  rise in income, it could be that his or her maintenance payments are reduced. Likewise, if the person receiving maintenance lives with a new partner for a significant amount of time, it could be that their entitlement to maintenance is cut.

Your ex’s maintenance payments would stop altogether if he or she remarried or entered into a new civil partnership.

18. What is a clean break agreement?

A clean break agreement is a court order that effectively draws a line under the financial association of a couple once they are divorced. Once a clean break agreement is in place, neither partner is able to make a financial claim against the other – no matter what the circumstances.

Clean break agreements can be difficult to make in cases where there are children to provide for, or if one partner has a significantly higher income than the other and spousal maintenance would normally be paid. The principle of ‘clean breaks’ does not apply to child maintenance obligations which cannot be dismissed by a court.

It is important to consult a legal professional and consider the advantages and disadvantages of a clean break agreement before going ahead.

19. I own a business. If we get divorced, will my partner have a claim on it?

Probably. However, if one partner owns a business the court will usually try to leave that person in control of it after their divorce is final.

In order to do this, the court might have to compensate the other partner with a larger share of assets such as savings or property. Alternatively, or sometimes even in addition to this, the spouse who keeps the business might be ordered to pay maintenance to his or her ex.

If you jointly own a business with someone you are divorcing, it is unlikely that you’ll want to carry on working with them once your marriage ends. In this case you may want to dissolve your partnership and close your business altogether, or one of you may want to ‘buy out’ the other.

If you and / or your partner own shares in a limited company, the court will look for the best way to deal with dividing up their value fairly.

Before agreeing on how to divide or agree upon ownership of a business during a divorce, it’s important to seek legal advice and ensure you know how much your business is worth.

See the Money Advice Service guide to sorting out a business during divorce for further information.

20. Will my ex have any rights to my pension if we get divorced?

Probably. Pensions are often among a couple’s most valuable assets – so the court will take into account any pensions that you and your partner have when you decide to get divorced, irrespective of whether they are workplace pensions, personal pensions or even the state pension.

Your ex partner’s potential entitlement to your pension, and the way in which they may be able to claim it, will depend on your individual circumstances. For example, it could be that your partner won’t be able to claim any share of your pension until you retire and begin drawing the pension yourself.

Your solicitor will be able to guide you and will act to protect your interests during negotiations over pensions. You may need help from an independent financial adviser, too – especially if you hold multiple pensions of different types.

The Money Advice Service guide to splitting pensions during divorce is also a useful resource.

21. Will my ex’s behaviour during the marriage make a difference to my financial settlement?

No – or at least it is very unlikely to.

The court’s priority is to ensure you and your ex partner arrive at a financial settlement that is fair, and which properly provides for the needs of any children you have.

The behaviour of either spouse is rarely considered when a financial settlement is negotiated, unless one partner has behaved in a way that has seriously affected the other – such as through domestic violence or abuse, by reckless spending or through the deliberate destruction of property.

 

Divorce and your home

22. I would like to stay in our family home if we get divorced – can the court order a sale?

Yes, but it won’t do so without carefully considering your situation first.

The court will take several factors into account when making a decision on whether or not a property has to be sold. First and foremost, the court will prioritise the welfare of any children you have.

If it is financially feasible for you and your children to stay in the family home, the court might rule that you are allowed to live in the house up until your children reach a certain age. During this time your partner could retain a financial interest in the property so that when it’s eventually sold, both of you would claim a share of any profit.

Alternatively, it could be that if your home is worth enough you are required to sell it so that two separate properties – one for you and one for your ex – can be bought.

What happens to your family home will depend upon your individual situation. It is important to get legal advice and make sure that your interests are properly protected, even if negotiations about the future of your property are amicable.

23. What if my partner is refusing to pay the mortgage?

It’s important that mortgage payments on your family home are kept up while you negotiate your financial settlement. If they aren’t, your lender could start proceedings to repossess your property.

If your mortgage is in joint names, then you and your partner have joint and several liability for the payments. This means that if one partner does not pay their share of the monthly mortgage, the lender is allowed to ask the other partner to pay the full amount.

If the mortgage is only in your partner’s name and he or she is refusing to make the payments, try not to panic. Because you are married, you have the right to make payments towards the mortgage – and your lender will have to accept them – even though your name is not on the mortgage deed.

If your partner is refusing to pay the mortgage and you are unable to make the payments yourself, contact your lender immediately to explain the situation and seek advice from your solicitor.

If your name is not on the mortgage, you may also wish to contact the Land Registry to register your matrimonial rights to your home. This will stop your ex from selling the property without your consent.

24. What happens to our rented home – and who has to pay for it – if we get divorced?

If you rent a property with your partner and you have a joint tenancy agreement, you will be jointly and severally liable for the rent. This means that if one of you doesn’t pay your share, the other partner can be pursued for the whole amount owed.

If you have a sole tenancy agreement, the person whose name is on the contract is liable for the rent. However, if your spouse stops paying the rent owed under a sole tenancy agreement you have the right to pay it instead. The landlord cannot refuse to accept this.

If your rent is not paid, your landlord will probably pursue you and / or your partner for it. It is also possible that he or she might start proceedings to evict you.

If your partner is refusing to pay his or her share of the rent and you cannot cover the payments on your own, you may be entitled to benefits that will help you. In this situation, it’s a good idea to contact your local Citizens Advice Bureau for help.

If you want to stay in your rented home once you are divorced you will need to contact your landlord to see if he or she will allow you to take on sole tenancy of the property. You’ll probably need to prove you can pay the rent on your own before they agree to this.

If you have a joint tenancy agreement and decide to move out of the property you formerly shared with your partner, it’s a good idea to have your name removed from the tenancy agreement – otherwise there is always a chance that, during the period of the contract, you could be asked to pay any rent that is owed. You will need to contact your landlord in order to organise this.

25. My name is not on the title deeds to our house – what are my rights?

That will depend on your individual circumstances. For example, your rights to the house may be affected if the property was owned by your partner before you got married and this is the reason why your name is not on the title deed.

The value of a property owned by just one partner will usually be considered when a financial settlement is being negotiated. During your divorce your partner cannot force you to leave the property if you are living there, even though your name is not on the title deed.

Once your divorce is final, you may not be able to stay permanently in a property that is solely owned by your ex – but in this case he or she will have to give you proper notice before they are able to evict you.

Other factors that will have a bearing on your rights in this situation include whether or not you have children. If you do, and if the court judges that the family home is the best place for them to continue living, it may rule that you are allowed to remain in the property until they reach a certain age.

 

Divorce and your children

26. Will we need a court order to make arrangements for who looks after our children?

Not necessarily. It could be that you and your partner are able to agree easily on where your children live and how much contact each of you has with them.

On the other hand, if you are finding it difficult to come to an arrangement you are both happy with, the court can make decisions for you.

It’s important to remember that the court will not grant you a divorce until it is satisfied that suitable arrangements for the care and financial support of your children have been made.

27. I want to see the children but my ex is preventing this – what can I do?

If you haven’t already been granted a contact order, you can apply to the court for one. A contact order will set out your rights to access to your children, and your ex will be expected to comply with it.

If a contact order has already been issued and your ex is still preventing you from seeing your children, you can go back to the court for help.

To help the court enforce a contact order that your ex is ignoring, it’s a good idea to keep records of your attempts to see your children and how you are being stopped from doing so. You will then be able to present these as evidence.

28. How can I make sure our children get financial support from my partner after we’re divorced?

If your divorce is amicable, it could be that making financial arrangements for the support of your children is straightforward. Agreements that are negotiated in this way are called voluntary agreements and do not require a court order.

You may want to take legal advice before coming to any arrangement, however, in order to make sure it is appropriate for your circumstances. A solicitor can also draw up a written agreement that will help to prevent future disputes – even if, at the moment, these seem unlikely.

In addition, the Child Maintenance Service will be able to offer you advice on setting up a voluntary child maintenance agreement.

You can also use the Child Maintenance Service to get financial support for your children where a voluntary agreement is not in place. Its website has a child maintenance calculator to help you estimate how much your ex should pay towards the financial support of your children.

If, for any reason, your ex does not pay the appropriate amount of child maintenance, you will need to take this up with the Child Maintenance Service rather than with the court.

29. What is parental responsibility and do I have it?

Parental responsibility means you have a duty to care for and protect your child. It is acquired when your children are born if you are already married to their mother, or if you get married to their mother at a later stage.

Whether or not your children live with you after you get divorced, you will retain parental responsibility for them.

Parental responsibility means you have the right to be involved in the making of certain decisions that affect your children. For example, your consent might be required before they have certain medical treatment and you have the right to a say in which school they go to.

30. What if my former partner and I can’t agree on parenting issues, such as which school the children should go to?

If you and your partner cannot agree on key issues that affect your child’s upbringing – such as which school they go to – you can apply to the court for a specific issue order.

This will allow a judge to look at the particular problem you are having and resolve it in the way he or she thinks is best for your child.

However, you may want to consider mediation before taking the matter to court. This may help to resolve the issue more quickly and smoothly.

31. Can I take the children to live abroad with me?

If your partner has parental responsibility for the children, no – you cannot take your children to live abroad unless you have sought the agreement of your ex.

If your ex will not agree to your taking the children abroad, you can apply to the court for a relocation application (also known as leave to remove).

The court’s primary consideration in this situation will be the welfare of your children, so you will need to prove the move is in their best interests in order for your application to succeed.

Thinking about divorce or have divorce questions?

1. What grounds can I give for wanting a divorce?

For the court to grant a divorce, you will need to show that your marriage has irretrievably broken down.

This means proving one of the following things – also known as giving the fact for divorce:

  • Adultery
  • Your partner has behaved unreasonably
  • Your partner deserted you at least two years ago
  • You and your partner have lived apart for two years – if you both agree to the divorce
  • You and your partner have lived apart for five years – if only one of you agrees to the divorce.

There is only one ground for divorce – irretrievable breakdown. This is proved by one of the facts listed above.

2. Are there any reasons why I might not be able to get a divorce?

Yes. You won’t be able to get a divorce until you have been married for at least a year. Your marriage also needs to be legally recognised in the UK in order for the court to grant you a divorce.

In addition, you must have a permanent home in England or Wales. (Scotland has its own legal system, and to get divorced there you and your partner will need to satisfy a Scottish court’s residency rules.)

Finally, you will need to prove to the court that your marriage has irretrievably broken down by citing one of the facts mentioned above.

3. How much is getting divorced likely to cost, and what are my funding options?

There are various costs associated with getting divorced, and every case is different – so it’s difficult to predict the cost of getting divorced with any certainty.

A full breakdown of the court fees you may have to pay is available on the government’s Money Advice Service website or the Justice website.

In addition, you may have to pay for a solicitor and / or a barrister. Many people choose to seek professional legal advice when getting divorced to ensure their interests are properly protected. How much advice you need, and how much it costs, will depend on the complexity of your divorce case and on the fees charged by the legal firm you choose.

Typically, it is expected that each partner will pay their own legal fees when getting divorced. The petitioner will always have the option to claim the divorce costs against the respondent when the petition is filed. If the petitioner seeks a contribution to their costs, the level of contribution is often agreed by consent. If costs cannot be agreed, the court will have to determine the contribution – however in the case of an adultery or unreasonable behaviour petition, the petitioner is normally entitled to recover all of the costs in the main divorce.

You can’t get legal aid for divorce unless you can prove you are the victim of domestic violence or domestic abuse. However, if you think you might be entitled to legal aid you can find information on how to claim it on the Gov.uk website. You might also find it helpful to contact Citizens Advice or the Legal Services Commission.

You may need to borrow money to cover the cost of your divorce. In some circumstances litigation funding – a loan specifically designed to cover legal fees – might be available, but these are quite rare. Ask your solicitor for more information.

Alternatively, if your partner earns a lot of money, if you are not entitled to legal aid and if there is no other way for you to cover the cost of your divorce, you may be able to ask the court for a maintenance agreement that requires your ex to contribute to your legal fees while a permanent financial settlement is being worked out.

4. Will I need a solicitor or a barrister to get divorced?

Some couples find they are able to negotiate their divorce calmly and quickly. In cases like these, it might seem that involving solicitors is unnecessary – although it is probably a good idea to have at least one meeting with a legal professional to ensure you are fully aware of your rights and confirm that your interests are properly protected.

If emotions are running high and your divorce process is more difficult, involving legal professionals from the beginning could help to make negotiations smoother.

Most people only need to use a solicitor during their divorce but if your case is complicated (for example if the facts of the divorce or costs are disputed) and you need to go to court, you may also wish to instruct a barrister. He or she will act as your advocate during hearings.

5. Will I have to appear in court in order to get a divorce?

Not necessarily. In many cases you will be able to get a divorce without appearing in court.

If you and your partner both agree to the divorce, and if you are in agreement about who should pay for it, the judge in your case is likely to pronounce decree nisi and decree absolute in your absence. Likewise, if you reach a financial settlement that you are both satisfied with, you probably won’t need to go to court.

On the other hand, if one partner does not agree to the divorce or if it is difficult to reach a financial settlement you both consider fair, you may be required to attend court.

 

How divorce works

6. How does the divorce process work, and how long will it take?

There are three main parts of the divorce process: filing for divorce, obtaining your decree nisi and obtaining your decree absolute.

Depending on how amicably you and your partner can negotiate your divorce, it is reasonable to expect that you might obtain your decree absolute around six months after first filing for divorce.

However, if one partner does not agree to the divorce, if you find it difficult to reach a financial settlement and if you struggle to agree on who should look after your children, your divorce is likely to take longer.

7. How do I start divorce proceedings?

To start divorce proceedings you will need to file a divorce petition.

You’ll need to prove that your marriage has irretrievably broken down, giving your grounds for divorce on the divorce petition form when you fill it in.

If you have children with your spouse, you will also need to fill in a form giving information about any arrangements you have made for their care and financial support after the divorce is final. If these arrangements are not satisfactory for any reason, your divorce will be delayed.

You will need to send three copies of each form you have filled in to any county court that deals with divorce. Choose a local court if possible, as there is a chance you may need to attend hearings during your divorce and any possible financial proceedings.

If your partner was unfaithful to you and you’ve named the person he or she had an affair with on your divorce petition form, you will need to send a fourth copy of this to the Court. The person you have named will receive a copy of the form.

Finally, you will need to pay a court fee when you file for divorce.

To download a divorce petition form and for more information, visit the Gov.uk website or HM Court & Tribunal Service.

8. What is a decree nisi, and how do I get one?

A decree nisi is a document that states the court does not see any reason why you can’t get divorced.

To apply for a decree nisi you will need to fill in a form. At the same time, you’ll be required to complete a statement form that refers back to the grounds you have already given for seeking a divorce.

If your partner agrees with the divorce, it’s likely that the judge will issue a decree nisi without the need for you to go to court.

On the other hand, if your partner contests the divorce you will have to attend a court hearing to discuss your case. The judge will decide whether or not to grant a decree nisi once you and your partner have provided more information about your relationship.

If you are granted a decree nisi, you’ll be sent a certificate of entitlement to a divorce, your decree nisi document and, if applicable, a form that states making arrangements for any children you may have is not a reason to delay divorce proceedings.

Should your application for a decree nisi be rejected, you’ll be sent a form telling you why you can’t get divorced. You will also be given information about what you should do next.

To download a decree nisi application form, visit Gov.uk.

9. What is a decree absolute, and how do I get one?

A decree absolute is a legal document that officially ends a marriage. To get one you will need to fill in an application form.

However, you must wait for at least six weeks and one day after receiving your decree nisi before applying for a decree absolute.

If your partner started divorce proceedings against you but for some reason has not applied for a decree absolute, you can do so instead. However, you will need to wait for three months on top of the usual six weeks before filling in the form. Because of important intestate rules, it is best practice that decree absolute should not be applied for until any financial claims have been settled.

Once the court is satisfied that there is no reason to refuse you a decree absolute, you and your partner will both receive a copy of the document. It is important to keep this safe as you will be required to produce it should you ever wish to remarry.

To download a decree absolute application form, visit Gov.uk.

10.Will my ex have to pay my costs if I petition for divorce?

Probably not. In divorce cases there is a presumption that both partners will pay their own costs, irrespective of who starts divorce proceedings.

In extreme circumstances, the court may require that your partner pays your costs as well as his / her own – but this is rare.

Alternatively, if you are unable to pay your own costs and are not entitled to legal aid, it could be that the court will ask your better off partner to contribute to your legal fees through maintenance payments until a final financial settlement has been agreed.

 

Reactions to divorce

11.What is the difference between an undefended and a defended divorce?

An undefended divorce is a divorce where both partners agree to end their marriage.

One partner will start divorce proceedings, and the other will accept this when they respond to the divorce petition they are sent by filling in the acknowledgement of service form they receive.

A defended divorce is where one partner does not agree with the divorce petition they are served by the other, and chooses to defend it – again by stating this on the acknowledgement of service form.

Undefended divorces are usually final around six months after proceedings first begin – whereas defended divorces may involve more difficult negotiations and take longer.

12. What if I don’t agree with the divorce petition I’ve received from my partner?

If your partner has started divorce proceedings against you and you disagree with the divorce petition for any reason, you can choose to defend it. You can do this when you fill in the acknowledgement of service form you are sent by the court.

You will also be required to explain why you are defending the divorce within 21 days of returning the acknowledgement of service form. In addition, you may be required to pay a court fee.

Alternatively, if you believe you have the legal grounds to do so, you could choose to start divorce proceedings against your partner. If you do this, you will probably be required to pay a court fee.

13. What if my partner defends my divorce petition?

If your partner defends your petition for divorce, it is likely that your divorce will take longer.

You can still apply for a decree nisi – the document that effectively gives you permission to get divorced – but you and your partner will be required to attend a court hearing to discuss your case before it can be granted.

If a decree nisi is issued you will be able to continue with the divorce process. If it isn’t, you will be given information about why and what to do next.

14. Given the breakdown of our marriage, should I make a new will?

Yes. If you have divorced or are in the process of divorcing your partner, it’s important to review your will and make any necessary changes to it as soon as possible.

This is because – while it isn’t a pleasant thought and may seem unlikely – you could die before you obtain your decree absolute. Under these circumstances, your partner could claim an inheritance from your estate despite the breakdown of your marriage. Consideration will also be given to serving any interest in jointly owned properties.

In addition, if your current will appoints your spouse as executor, your divorce from him or her will invalidate this.

Finally, in light of your divorce you may need to review who you have appointed in your will as guardians for any children you have, should anything happen to you before they reach adulthood.

 

Your finances, property and possessions

15. Will we need a court order to divide up our property and possessions?

Yes – it is certainly a good idea to get one.

While you may not need to go to court in order to reach agreement on who will get what once your divorce is final, it is a good idea to seek advice from a legal professional who can ensure your interests are protected during negotiations.

Once you and your partner are both happy with the financial settlement you’ve drawn up, you should apply for a court order that confirms it. This will make your agreement legally binding and protect you against any future financial claims from your ex.

The Money Advice Service offers a divorce and separation calculator that you might find useful when trying to agree a financial settlement with your partner.

16. Will I still have to support my partner financially if we get divorced?

Possibly. Even if you do not have any children, the court might order that you pay spousal maintenance to your ex.

Maintenance is payable by the person with the highest income to the partner who is financially worse off – but only where their ex is unable to support themselves without it.

The calculation of maintenance payments can be complicated. How much you are ordered to pay will depend on many factors, including your income and the length of your marriage.

These factors will also affect how long you are required to pay maintenance for.

17. Once my partner and I have made an agreement on maintenance, is it final?

Not necessarily. The amount of maintenance you have to pay to your ex can be adjusted up or down, depending on circumstances.

If you were to lose your job or retire, the amount you had to pay your ex partner would decrease accordingly. On the other hand, if your income rose significantly it could be that your maintenance payments would rise too.

If the person receiving maintenance gets a job after a period of unemployment, or enjoys a  rise in income, it could be that his or her maintenance payments are reduced. Likewise, if the person receiving maintenance lives with a new partner for a significant amount of time, it could be that their entitlement to maintenance is cut.

Your ex’s maintenance payments would stop altogether if he or she remarried or entered into a new civil partnership.

18. What is a clean break agreement?

A clean break agreement is a court order that effectively draws a line under the financial association of a couple once they are divorced. Once a clean break agreement is in place, neither partner is able to make a financial claim against the other – no matter what the circumstances.

Clean break agreements can be difficult to make in cases where there are children to provide for, or if one partner has a significantly higher income than the other and spousal maintenance would normally be paid. The principle of ‘clean breaks’ does not apply to child maintenance obligations which cannot be dismissed by a court.

It is important to consult a legal professional and consider the advantages and disadvantages of a clean break agreement before going ahead.

19. I own a business. If we get divorced, will my partner have a claim on it?

Probably. However, if one partner owns a business the court will usually try to leave that person in control of it after their divorce is final.

In order to do this, the court might have to compensate the other partner with a larger share of assets such as savings or property. Alternatively, or sometimes even in addition to this, the spouse who keeps the business might be ordered to pay maintenance to his or her ex.

If you jointly own a business with someone you are divorcing, it is unlikely that you’ll want to carry on working with them once your marriage ends. In this case you may want to dissolve your partnership and close your business altogether, or one of you may want to ‘buy out’ the other.

If you and / or your partner own shares in a limited company, the court will look for the best way to deal with dividing up their value fairly.

Before agreeing on how to divide or agree upon ownership of a business during a divorce, it’s important to seek legal advice and ensure you know how much your business is worth.

See the Money Advice Service guide to sorting out a business during divorce for further information.

20. Will my ex have any rights to my pension if we get divorced?

Probably. Pensions are often among a couple’s most valuable assets – so the court will take into account any pensions that you and your partner have when you decide to get divorced, irrespective of whether they are workplace pensions, personal pensions or even the state pension.

Your ex partner’s potential entitlement to your pension, and the way in which they may be able to claim it, will depend on your individual circumstances. For example, it could be that your partner won’t be able to claim any share of your pension until you retire and begin drawing the pension yourself.

Your solicitor will be able to guide you and will act to protect your interests during negotiations over pensions. You may need help from an independent financial adviser, too – especially if you hold multiple pensions of different types.

The Money Advice Service guide to splitting pensions during divorce is also a useful resource.

21. Will my ex’s behaviour during the marriage make a difference to my financial settlement?

No – or at least it is very unlikely to.

The court’s priority is to ensure you and your ex partner arrive at a financial settlement that is fair, and which properly provides for the needs of any children you have.

The behaviour of either spouse is rarely considered when a financial settlement is negotiated, unless one partner has behaved in a way that has seriously affected the other – such as through domestic violence or abuse, by reckless spending or through the deliberate destruction of property.

 

Divorce and your home

22. I would like to stay in our family home if we get divorced – can the court order a sale?

Yes, but it won’t do so without carefully considering your situation first.

The court will take several factors into account when making a decision on whether or not a property has to be sold. First and foremost, the court will prioritise the welfare of any children you have.

If it is financially feasible for you and your children to stay in the family home, the court might rule that you are allowed to live in the house up until your children reach a certain age. During this time your partner could retain a financial interest in the property so that when it’s eventually sold, both of you would claim a share of any profit.

Alternatively, it could be that if your home is worth enough you are required to sell it so that two separate properties – one for you and one for your ex – can be bought.

What happens to your family home will depend upon your individual situation. It is important to get legal advice and make sure that your interests are properly protected, even if negotiations about the future of your property are amicable.

23. What if my partner is refusing to pay the mortgage?

It’s important that mortgage payments on your family home are kept up while you negotiate your financial settlement. If they aren’t, your lender could start proceedings to repossess your property.

If your mortgage is in joint names, then you and your partner have joint and several liability for the payments. This means that if one partner does not pay their share of the monthly mortgage, the lender is allowed to ask the other partner to pay the full amount.

If the mortgage is only in your partner’s name and he or she is refusing to make the payments, try not to panic. Because you are married, you have the right to make payments towards the mortgage – and your lender will have to accept them – even though your name is not on the mortgage deed.

If your partner is refusing to pay the mortgage and you are unable to make the payments yourself, contact your lender immediately to explain the situation and seek advice from your solicitor.

If your name is not on the mortgage, you may also wish to contact the Land Registry to register your matrimonial rights to your home. This will stop your ex from selling the property without your consent.

24. What happens to our rented home – and who has to pay for it – if we get divorced?

If you rent a property with your partner and you have a joint tenancy agreement, you will be jointly and severally liable for the rent. This means that if one of you doesn’t pay your share, the other partner can be pursued for the whole amount owed.

If you have a sole tenancy agreement, the person whose name is on the contract is liable for the rent. However, if your spouse stops paying the rent owed under a sole tenancy agreement you have the right to pay it instead. The landlord cannot refuse to accept this.

If your rent is not paid, your landlord will probably pursue you and / or your partner for it. It is also possible that he or she might start proceedings to evict you.

If your partner is refusing to pay his or her share of the rent and you cannot cover the payments on your own, you may be entitled to benefits that will help you. In this situation, it’s a good idea to contact your local Citizens Advice Bureau for help.

If you want to stay in your rented home once you are divorced you will need to contact your landlord to see if he or she will allow you to take on sole tenancy of the property. You’ll probably need to prove you can pay the rent on your own before they agree to this.

If you have a joint tenancy agreement and decide to move out of the property you formerly shared with your partner, it’s a good idea to have your name removed from the tenancy agreement – otherwise there is always a chance that, during the period of the contract, you could be asked to pay any rent that is owed. You will need to contact your landlord in order to organise this.

25. My name is not on the title deeds to our house – what are my rights?

That will depend on your individual circumstances. For example, your rights to the house may be affected if the property was owned by your partner before you got married and this is the reason why your name is not on the title deed.

The value of a property owned by just one partner will usually be considered when a financial settlement is being negotiated. During your divorce your partner cannot force you to leave the property if you are living there, even though your name is not on the title deed.

Once your divorce is final, you may not be able to stay permanently in a property that is solely owned by your ex – but in this case he or she will have to give you proper notice before they are able to evict you.

Other factors that will have a bearing on your rights in this situation include whether or not you have children. If you do, and if the court judges that the family home is the best place for them to continue living, it may rule that you are allowed to remain in the property until they reach a certain age.

 

Divorce and your children

26. Will we need a court order to make arrangements for who looks after our children?

Not necessarily. It could be that you and your partner are able to agree easily on where your children live and how much contact each of you has with them.

On the other hand, if you are finding it difficult to come to an arrangement you are both happy with, the court can make decisions for you.

It’s important to remember that the court will not grant you a divorce until it is satisfied that suitable arrangements for the care and financial support of your children have been made.

27. I want to see the children but my ex is preventing this – what can I do?

If you haven’t already been granted a contact order, you can apply to the court for one. A contact order will set out your rights to access to your children, and your ex will be expected to comply with it.

If a contact order has already been issued and your ex is still preventing you from seeing your children, you can go back to the court for help.

To help the court enforce a contact order that your ex is ignoring, it’s a good idea to keep records of your attempts to see your children and how you are being stopped from doing so. You will then be able to present these as evidence.

28. How can I make sure our children get financial support from my partner after we’re divorced?

If your divorce is amicable, it could be that making financial arrangements for the support of your children is straightforward. Agreements that are negotiated in this way are called voluntary agreements and do not require a court order.

You may want to take legal advice before coming to any arrangement, however, in order to make sure it is appropriate for your circumstances. A solicitor can also draw up a written agreement that will help to prevent future disputes – even if, at the moment, these seem unlikely.

In addition, the Child Maintenance Service will be able to offer you advice on setting up a voluntary child maintenance agreement.

You can also use the Child Maintenance Service to get financial support for your children where a voluntary agreement is not in place. Its website has a child maintenance calculator to help you estimate how much your ex should pay towards the financial support of your children.

If, for any reason, your ex does not pay the appropriate amount of child maintenance, you will need to take this up with the Child Maintenance Service rather than with the court.

29. What is parental responsibility and do I have it?

Parental responsibility means you have a duty to care for and protect your child. It is acquired when your children are born if you are already married to their mother, or if you get married to their mother at a later stage.

Whether or not your children live with you after you get divorced, you will retain parental responsibility for them.

Parental responsibility means you have the right to be involved in the making of certain decisions that affect your children. For example, your consent might be required before they have certain medical treatment and you have the right to a say in which school they go to.

30. What if my former partner and I can’t agree on parenting issues, such as which school the children should go to?

If you and your partner cannot agree on key issues that affect your child’s upbringing – such as which school they go to – you can apply to the court for a specific issue order.

This will allow a judge to look at the particular problem you are having and resolve it in the way he or she thinks is best for your child.

However, you may want to consider mediation before taking the matter to court. This may help to resolve the issue more quickly and smoothly.

31. Can I take the children to live abroad with me?

If your partner has parental responsibility for the children, no – you cannot take your children to live abroad unless you have sought the agreement of your ex.

If your ex will not agree to your taking the children abroad, you can apply to the court for a relocation application (also known as leave to remove).

The court’s primary consideration in this situation will be the welfare of your children, so you will need to prove the move is in their best interests in order for your application to succeed.

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Thank you for your enquiry. Your message has been sent to SA Law.

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