A divorce can be started so long as you have been married for at least one year. A divorce petition is prepared and submitted to the court. The other party then receives an acknowledgment form. You can then proceed to the Decree Nisi stage (the interim divorce order) and, after waiting six weeks and one day, you can apply for the Decree Absolute (the final divorce order). Extra care is needed where the case has an international element to it as a divorce could possibly be started in more than one country but the financial outcomes might be significantly different.
Usually an uncontested divorce takes about four to six months to complete. Any issues to do with the children or finances could take longer, often between six and twelve months.
This can be an immediate concern. The focus should be to agree a level of interim maintenance to ensure that the mortgage and bills are paid. Sometimes tax credits become available which can supplement a person’s income. However, if an agreement cannot be reached then you do have the right to apply to a court (through a divorce) for interim maintenance and/or to apply to the Child Support Agency for child support maintenance.
It is important in any case that there is full and relevant disclosure of the family’s finances and from both parties. Normally a request is made for voluntary financial disclosure. This includes details of all assets (including business interests), liabilities, income, outgoings and pension provision with documents in support. Where a party refuses to do this then you are entitled (through a divorce) to make a financial application. The Court will then automatically set a court timetable for certain tasks to be completed. One of those tasks is the preparation and exchange of financial information in a form called ‘Form E’ with documents in support. You are then entitled to consider the financial disclosure and prepare relevant questions if you and your adviser feel more information or clarification is needed.
No two cases are ever the same and a 50/50 split is not always appropriate. It is also important to see what is financially at stake, to check that all of the assets and income have been disclosed and that the valuations are accurate. When considering the financial issues, a court is guided by a number of factors to include:
- the welfare of any minor children
- income, earning capacity, assets and financial resources
- financial needs, obligations and responsibilities
- standard of living
- age of each party and the length of the marriage
- health of each party
- contributions (financial and non-financial)
- loss of certain rights
The living arrangements for the children will need to be carefully discussed and considered where parents separate. In a lot of cases the parents are able to reach an agreement about what time the children will spend with each of them. This might not be easy but remember that although you have rights, more importantly, the children have a right to see their parents and to spend time with each of them. Where parents cannot agree matters then the court can assist. This can be by way of a residence order and/or a contact order. In some cases there can be a shared residence order. A judge can appoint a welfare officer (known as a Cafcass officer) to prepare a report to assist the court in reaching a decision. What is most important is the welfare of the children and what is in their best interests.
Whether or not the family home has to be sold will depend on the facts of the individual case. In most cases one of the concerns is how everyone (including) the children are to be accommodated. The parties will eventually separate and where there was one home there will then be two. This can mean that the family home is sold and the net proceeds of sale are divided so that everyone can find new accommodation. This does not necessarily mean, however, that there will be an equal split of the money. Much depends on the needs of the parties and of any children. It may also be possible to postpone the sale of the family home until the children have left home or to offset the family home against other assets (including pensions) so that the property can be retained. Legal advice should be obtained to see what relevant options are available.
You may be entitled to change the locks but the other party might be entitled to change the locks back again. You should seek legal advice to check your position and entitlement. Where there is a concern about your safety, it might be appropriate to contact the police or seek an injunction order.
Yes, the fact that you are not married can make a significant difference. There is no such thing as a ‘common law’ husband or wife. The legal rights and remedies might be limited to the family home and how this is owned. Where there are children, however, it might be possible to make an additional claim for financial provision for a child under Schedule 1 Children Act 1989.
It is often prudent to seek some form of legal advice. There is a saying: “a man who acts for himself has a fool for a client”. Family law proceedings can be difficult, stressful and emotional; and it can be very difficult to represent yourself. Costs are a natural concern and it is very important to keep the costs in proportion with what is at stake. However, there is no point saving some legal costs to the extent that you concede or overlook certain points in the case which cause you to lose more. It is important that you find a family law solicitor that you find comfortable to work with and who is always contactable. Your case could take a number of months to resolve and you should be able to work together as a team. This can also help keep the costs in check because your solicitor should explain the costs to you moving forward and what work you can actually do yourself to help save them. A family lawyer is there to advise and guide you through a difficult time; and to work with you to find a solution to the problem. Where court proceedings are necessary this also involves robustly dealing with the case to ensure the best possible outcome.
An average undefended divorce usually costs in the region of £500-750 + vat for the solicitor. In addition there is a court fee of £410 to start the proceedings and to obtain the decree absolute at the end. Other cases can be more complicated for example where there is an international element to them . If there are any other issues, for example, in relation to the finances or the children then the costs are likely to be more. A family lawyer should be able to give a best estimate of costs on a case by case basis and/or as the case progresses.
Good preparation will help both you and your solicitor. Some useful points to consider are:
- Prepare a short chronology of your relationship noting any relevant dates and events
- Prepare a summary of assets, liabilities and income of the family's finances as best you can
- Prepare a list of any questions or points you wish to raise or which are a concern for you
It is important to retain some level of communication for your partner. Cases that often proceed to expensive final hearings are usually those where there is little or no communication between the parties. It is important to focus on the relevant issues and work as a team with your family lawyer. Communication can be the key to unlocking the problem and finding a solution.