08 June 2016
Family Law, the Next Steps - What to do When it's Time to Divorce
Family Law, the next steps...
My partner and I are separated and I think it is time to divorce, what should I do?
The first step is to take legal advice as soon as possible, ideally as soon as you realise that divorce is likely, as the earlier you have the full facts in relation to your situation, the better.
A divorce can involve 3 separate processes which run in parallel: the divorce, the finances and arrangements for children. Many people do not realise that in order to obtain a divorce under English law, you must establish that the marriage has irretrievably broken down, relying on one of five possible facts. Of these facts only the other party’s adultery or unreasonable behaviour will allow divorce proceedings to be filed immediately, without waiting for a period of separation to elapse. The other possible facts are two years separation with the other party’s consent, five years separation without consent or desertion. Therefore if you wish to divorce immediately and without waiting until you have been separated for at least two years, you need to rely on the other party’s adultery or unreasonable behaviour. If there has been adultery and the other party is prepared to admit it, then there is no difficulty, however if adultery has not occurred or if the other party will not admit to it, unreasonable behaviour is used instead. Unless there is a single, dramatic example of such behaviour, usually this will involve listing four or five examples of the other person’s behaviour which have led the Petitioner to conclude that he or she can no longer remain married. Although this may sound daunting and even unnecessarily combative, especially where a couple is trying to remain amicable, the good news is that the behaviour does not need to be extreme and a good family lawyer should draft the particulars of behaviour in a way which does not increase animosity. The average cost of obtaining a divorce is between £1,200 and £1,500 plus the £550 divorce petition fee which is payable to the Court, although it is important to remember that this does not include the costs of dealing with arrangements for children or the finances. The process of getting divorced is likely take 3 to 6 months. You will need your original marriage certificate or certified copy. There are two stages to getting divorced, the first stage is the decree nisi and it is crucial to understand that this is effectively an interim stage and that it does NOT end the marriage. The marriage is only ended by the decree absolute.
Discussing and settling financial arrangements usually takes place whilst the divorce itself is proceeding, although it is worth bearing in mind that in the majority of cases it is important to ensure that the court has approved any financial settlement and made an order reflecting its terms, before obtaining decree absolute. Reaching a financial settlement involves consideration of how the housing and other financial needs of the parties and any children can best be met and how the matrimonial assets (including equity in any property, savings, investments, ISAs, premium bonds, pensions etc.) and the parties’ incomes should be used to meet those needs. Once a settlement is reached, this should be reflected in a court order. Obviously there are cases where agreement is simply not possible and then the court can assist and ultimately make any orders it feels are necessary to deal with the finances in the fairest way.
It is always preferable to reach an agreement over arrangements about where and with whom children will live and when they will see the other parent. Each family will have different arrangements which are suitable for that family, however a typical arrangement is for children to spend alternate weekends with each parent and perhaps an evening in the week (if work commitments allow) with the parent they do not live with, along with up to half of each school holiday. If parents find it difficult to communicate and are unable to come to an agreement over arrangements for children, then a first step may be to consider mediation. If agreement is still not possible then an application can be made for the court to become involved and then a Judge will make a decision on the matter.