Divorce is unavoidably a difficult and tumultuous experience. You might sense the pressure of uncertainty and be uncertain about your options. Additionally, it is normal to have numerous divorce-related concerns. It is, after all, a novel experience for many individuals. This article attempts to address some of the most frequently asked questions about the divorce procedure in order to provide you with the peace of mind and answers you require during this trying time.
How to Divorce in England and Wales: The First Steps
If you have been married for at least a year and want to divorce, you can do so in England and Wales. Your marriage must be officially recognised in England and Wales, and you or your spouse must normally make England or Wales your permanent residence.
New legislation went into effect on April 6, 2022, which means that couples no longer need to cite fault in any divorce case. This is referred to as a “no-fault divorce.” The only legal basis for divorce is an irreversible breakdown of the marriage.
A divorce can be initiated by either one person (a solitary application) or both parties (a joint application). If it is a single application, the parties are referred to as Applicant and Respondent. Applicant 1 and Applicant 2 are the parties involved in a joint application. When the court gets the application, it will review all of the paperwork. If they are right, they will officially issue the divorce petition and send a copy to the respondent (the person who is not suing for divorce) or both applicants in the case of a joint application. In the case of a single application, the respondent must complete the Acknowledgement of Service. Many cases are handled digitally, with documentation submitted through email or uploaded.
There are relatively few defences under the new “no fault” divorce, and divorce can only be contested on certain grounds, such as challenges about the validity of the marriage, arguments that England and Wales is not the suitable venue, or perhaps a claim that the marriage has already terminated. It cannot be justified on the grounds that one individual disagrees with the breakdown of the marriage or believes they are blameless.
An applicant can petition for the conditional order twenty weeks after the court issues the application. This is an interim stage that was originally known as Decree Nisi. It is a crucial stage because only after the conditional order is issued can a court issue a financial order, even if by consent.
Six weeks and one day after the conditional order, the applicant may petition for the final order, formerly known as the decree absolute.
Once the final order is obtained and sealed, the parties are officially divorced.
Is it important who files for divorce first?
In most circumstances, no, it has no bearing on the outcome of the divorce. Keep in mind, however, that the person filing for divorce (the applicant or applicant 1) may suffer additional costs for court and attorney fees. However, both parties may choose to bear these expenditures equally.
The applicant also has more influence over the length of the process because they can select when to file for divorce and when to seek the official order, which makes matters official.
What am I entitled to in a divorce settlement?
The law specifies various considerations, and the courts have broad discretion in interpreting and applying these.
Included among the assets to be evaluated are real estate, pensions, savings, and other personal property. These must be divided equitably between the parties upon divorce. However, this does not necessarily imply a 50/50 division. Additionally, income claims must be considered, as a party may sometimes seek maintenance.
Occasionally, a couple’s assets will include assets obtained from sources outside the marriage. This may include assets owned prior to the relationship, assets inherited by one party or gifted to one party during the marriage, and, on occasion, assets obtained or accumulated after the couple divorced.
When determining how assets will be divided, the court will typically begin with a 50/50 division of all marital assets. However, there can be reasons why this would be an unjust and, therefore, incorrect outcome. Such justifications can be used to justify a departure from equality on behalf of one individual in order to achieve a fair result.
The definition of “fair” will differ from case to case. For instance, a divorcing couple without children earning comparable amounts who have accumulated all of their assets jointly and who have comparable future earning potential may consider a 50/50 division equitable. Alternatively, a couple in which one spouse has not worked for some time to care for children may find it more equitable for the spouse who has not worked to retain a larger proportion of assets, such as a larger share of the family home, because they do not have the same mortgage borrowing capacity as the other.
The court will determine what is “fair” using the Matrimonial Causes Act of 1973. The Act specifies several considerations for the court, including but not limited to the following:
- Children under 18 and their welfare are usually the most significant factors.
- The income and future earning potential of each party.
- The financial obligations that each party has and is likely to have in the future.
- The standard of living that all parties had before the marriage’s breakdown.
- The contribution that each party has made to the welfare of the family. This includes financial contributions as well as those such as looking after the home and children.
- The age of each party.
- The duration of the marriage.
- Any disabilities that the parties may have.
Each case is unique, and the division of assets will depend on the specifics of each situation. For instance, one party may argue that they should have credit or be able to “ring-fence” assets that originated from sources outside the marriage, whereas the other party may argue that if this were to occur, their needs would not be met and it would therefore be unfair. Meeting requirements is a crucial factor that may trump other considerations. In addition, the welfare of any children involved is the top priority when determining the division of property. When it comes to financial settlements, your attorney will be able to recommend the best course of action.
In a divorce, what happens to the house?
In many cases, the largest matrimonial asset in a divorce is a piece of property (typically the family residence), and uncertainty about where you will reside is stressful. Consequently, it is natural to be concerned about this matter’s division. If you cannot concur, the court can make the decision. Unless there is a reason not to, such as the inability to meet both parties’ requirements, they usually operate on a 50/50 basis. As stated previously, the well-being of children is of the utmost importance; accordingly, this will be the primary factor considered.
If the house is sold, the individual with whom the children reside may not be able to rehouse them in a suitable manner. In such a case, it may be possible to contend that the individual should be permitted to remain in the family home with the children and that the property will be sold upon the occurrence of a future event, such as the occupant remarrying or the children reaching a certain age or educational level. When possible, however, the court will try to ensure that both parties can purchase a home if they previously owned one together, particularly if there are children who will live with both parties. However, this is not always feasible.
Both parties will have “family home rights” before the divorce is finalised. This means that if one spouse owns the home where both formerly resided, the other spouse has the right to remain there until the divorce is finalised and a financial settlement has been reached. This privilege can be safeguarded by filing a Family Home Notice Publication.
Can pensions be claimed in a divorce?
In a divorce, pension division must be considered and should not be neglected. On occasion, the value of the pension can exceed that of the other assets. It is now widely acknowledged that simply dividing the value of a pension fund in half is not the best way to handle the vast majority of situations, and that expert assistance is frequently required.
One party may have a much smaller pension provision than the other, perhaps because they earned less, and even if retirement is still several years away, it is essential to consider the situation in the future.
Pension Sharing Orders can only be issued in conjunction with a Financial Remedies Order, and once the pension values are known, your attorney will be able to advise you on how your pensions might work into your settlement and the best way to approach this.
What is a divorce financial settlement?
A divorce financial settlement is typically an agreement between you and your spouse regarding the division of assets upon divorce. Before engaging in an agreement, it is essential for both parties to be fully informed of the other’s financial situation. Disclosure is a process in which both parties reveal their circumstances to one another.
You can make this agreement at any time during the divorce proceedings. Once the agreement has been reached, you can have your attorney compose a consent order (Financial Remedies Order by Consent), making it legally binding and stating that both parties have agreed to it. This must be approved by a judge after the conditional order has been issued. Before a judge will sanction it, they must be provided with a summary of both parties’ financial situations so they can determine whether or not it is fair. It is essential to understand that just because you and your spouse have reached an agreement on something, that does not mean a judge will concur that it is fair. They must exercise their judicial discretion in accordance with the law.
Putting together your own divorce financial settlement can make the entire process significantly less distressing, as the court will not have to decide on a financial settlement for you. Suppose, however, that you cannot reach a decision amicably or that you and your spouse have a complicated financial situation. In such a situation, a judge can issue a financial order in response to an application from one party. Keep in mind, however, that you will typically be required to demonstrate that you have previously attended a mediation meeting (unless abuse is involved).
A divorce financial settlement with a consent order (or a court-issued order) also ensures that your ex-spouse cannot make a new financial claim against you in the future since everything has already been decided.
Am I required to accept my spouse’s settlement offer?
No. If your spouse offers you an unsatisfactory financial settlement, you are not required to accept it. It is preferable to arrive at a mutually satisfying agreement together. If you cannot reach an agreement among yourselves or through mediation, you will need to determine how to proceed. If you both agree, your case can be put to an arbitrator who will make an award, which your lawyer would then draft into a consent order, or you can seek for your case to be decided by the court as a last resort.
In England and Wales, how much does a divorce cost?
To file for a divorce, you are required to pay a fee of £593. Then there are attorney fees to consider. This varies from case to case. The respondent’s expenses are less than those of the applicant.
In addition to the £53 court fee, additional attorney fees are required for a consent order to make your divorce financial settlement legally binding.
If a financial agreement cannot be reached, you will incur additional attorney and judicial fees. The court will assess a fee of $275 for this. At this stage, attorneys’ fees can become more costly, which is one of the reasons why it is recommended to reach a settlement before a court appearance is required.
If you are struggling to reach an agreement but do not want to pay for court and all of the fees that this can incur, mediation sessions are a cheaper option that may help you agree. Overall, it is impossible to estimate how much your divorce will cost because each case is unique, and it can be difficult to anticipate how your case will progress at the outset. However, the simpler and more cordial your divorce proceedings are, the less it will likely cost both parties. Your attorney will be able to estimate the total costs of your divorce proceedings.
How long does it take to get a divorce in England and Wales?
If you desire a divorce, you may be anxious for it to take place as quickly as possible. However, how long does it take? Typically, there will be a minimum of 26 weeks between the filing of the application and the issuance of the final order, primarily due to the 20-week delay between the filing and the conditional order.
However, the length of time it takes differs from case to case, and it will likely be longer if there are children or assets involved. In addition, the process of reaching a financial settlement parallels divorce proceedings. Keep in mind that it may take longer to finalise than the divorce itself, particularly if you and your spouse have a complex financial situation.
Are there any other options besides divorce?
Yes, there are alternatives to divorce if you wish to separate from your spouse but do not wish to divorce. These are listed below:
- You and your spouse decide to separate on an informal basis. You decide on a financial settlement and other terms of your separation among yourselves. The court is not involved, so this may not be binding.
- A separation agreement is a document drawn up by a lawyer that outlines the financial settlement agreed upon for the period of separation. It may also state what you and your spouse would wish the financial settlement to be if you got divorced in the future. Bear in mind that the court is not bound to follow this, but it is likely to be considered if certain criteria are met, such as proper financial disclosure of assets and income between parties, legal advice on both sides, and if it is fair.
- Judicial separation is a formal method of separation that is sanctioned by the court. The application process is similar to that for divorce. You need to submit an application, and again, this can be sole or joint.
When is it legal for me to remarry after a divorce?
You can marry again immediately after receiving your Decree Absolute/Final Order, which implies that the divorce has been formalised and the marriage is terminated, but please see below for the potential hazards. It is illegal to marry someone else until this moment because your marriage is not really over.
Remember that if you remarry without filing claims or having a financial order or consent order in place, you will no longer be able to apply for a financial provision order. This implies you will be unable to seek spousal maintenance, a lump sum, or any property adjustment from your ex-spouse. The only thing you might be able to do is file a claim for your ex-spouse’s pension or use civil (rather than matrimonial) law to get orders where a claim might emerge under civil law. As a result, it is normally best to wait until a financial settlement has been reached before remarrying following a divorce.
Do I need a divorce lawyer?
In theory, you can divorce without the assistance of a lawyer. It is not required by law for any party in a divorce to have one. ‘DIY Divorces’ are growing more popular. If your divorce is easy (you are a childless couple who has only been married for a few years, the divorce is uncontested, and your financial situation is straightforward), this may appear to be a viable alternative. It is crucial to note, however, that until claims are dismissed by the court, you may still face claims in the future, for example, if your financial situation improved considerably, as your former spouse’s claims normally survive the divorce until they are dismissed by a court.
In most circumstances, hiring a lawyer to assist you with the divorce procedure is strongly advised. Furthermore, if the parties are unwilling to speak with one another, hiring lawyers may be necessary to ensure that the process can continue. If there are children involved in the divorce, a professional family lawyer can help you manage the unique challenges that may arise.
In short, while a divorce lawyer is not legally required, having one can make the process a lot more manageable. They will counsel you on all aspects of the divorce and may save either side from making costly blunders during the discussions.
Do I have to go ahead with the divorce now that it’s been filed?
After filing the divorce petition, you can put the proceedings on hold. This can be done at any time before or after the conditional order is imposed. However, it must be done prior to the final order, which makes the divorce final.
If you want to halt the proceedings and withdraw your divorce case entirely, you can do so with a joint application.
What happens to the children in a divorce?
If you have children together, you must make provisions for them. These arrangements will, among other things, specify who will care for the children and when.
When pursuing a divorce settlement, it is critical to prioritise the children’s welfare above everything else. If a settlement is reached in court, this is what the court will do. You can negotiate child custody agreements among yourselves and have a lawyer make them legally binding, or you can keep it informal if that works for you. If you are unable to reach an agreement, you can attend family mediation sessions. Having a judge decide your child’s arrangements will be a last resort.
Where do I even begin?
Before initiating divorce proceedings, it is preferable to know where you stand and what your options are, as this can alleviate some of the tension and uncertainty. It is important to get things right and to have a legally binding agreement, as parties have to live with the outcomes. Oftentimes, the initial step is to consult with a lawyer, who can offer advice and propose potential next steps.
Our attorneys can provide guidance on alternative dispute resolution techniques, such as mediation and arbitration.
Divorce is a distressing experience for everyone. Choosing the right attorney to guide you through the process can, however, make things simpler. At DLS Solicitors, our divorce and family attorneys will be by your side every step of the way, assisting you in achieving the desired outcome. A qualified attorney will handle your case and serve as your point of contact.
