frequently asked questions
Our team of specialist family law solicitors have answered the questions that they are most commonly asked by clients. Click the questions below to view the answers.
Divorce
I have heard there has been a major change in the divorce law, is this a positive step?
Yes, the new law has no requirement to prove fault in a divorce. Previously you had to allege e.g. adultery or unreasonable behaviour of the other party to obtain a divorce. This lead to amicable divorces becoming acrimonious. The divorce is now much more of a process, rather than to do with pointing the finger or trying to assess who is responsible for the breakdown. This allows separating couples to concentrate on more important issues such as the arrangements for the children or financial matters.
If the divorce process has been simplified, do I still need a solicitor when applying for a divorce?
Yes, you do. The actual divorce process does not consider the arrangements for the children or financial matters. Even if you have an agreement in relation to these issues you should still take legal advice. Please see case studies setting out why you may be at a disadvantage if you do not take legal advice following a relationship breakdown.
I have got my Decree Absolute – Do I need a Court Order if finances have been agreed with my ex?
Yes – otherwise your ex may be able to make claims against your property and other assets in the future even if they are in your sole name.
Will I have to separate for 2 years before I can start the divorce?
No, under the new rules there is one ground for divorce and that is irretrievable breakdown of marriage. The applicant (previously petitioner) proves the marriage has broken down irretrievably by signing a statement to that effect. There is no longer a requirement to separate for 2 years with consent, prove adultery, prove unreasonable behaviour, or separate for 5 years.
Can I plead adultery in divorce proceedings?
No, under the new rules there is one ground for divorce and that is irretrievable breakdown of marriage. The applicant (previously petitioner) proves the marriage has broken down irretrievably by signing a statement to that effect. There is no longer a requirement to prove adultery, prove unreasonable behaviour, separate for 2 years with consent, or separate for 5 years.
Can I plead unreasonable behaviour in divorce proceedings?
No, under the new rules there is one ground for divorce and that is irretrievable breakdown of marriage. The applicant (previously petitioner) proves the marriage has broken down irretrievably by signing a statement to that effect. There is no longer a requirement to prove unreasonable behaviour, prove adultery, separate for 2 years with consent or separate for 5 years.
Can I ask the Court to order the other spouse to pay the costs of the divorce?
It is now not possible to ask the Court to order the other spouse to pay your divorce costs unless there are exceptional circumstances, in which case the applicant would need to make a formal application for a costs order and pay a Court fee.
Can my spouse defend the divorce?
No unless there are any issues in relation to jurisdiction. Under the old rules it was possible to defend a divorce by disproving allegations of adultery or unreasonable behaviour. This is no longer an option.
Can the divorce proceed if my spouse does not acknowledge the proceedings?
Yes, if the respondent does not acknowledge the proceedings, you can arrange to have them personally served with the Divorce Application and the Process Server will file a signed statement with the Court, confirming the respondent has received the documents. There may be other options, for example if the respondent has disappeared but specialist advice would be required if that is the case.
Under the new divorce rules do I still get a Decree Absolute?
No, the terminology has changed. Instead of petitioner and respondent we now have applicant and respondent. Instead of a petition, we have a Divorce Application. Decree Nisi becomes Conditional Order and Decree Absolute becomes Final Divorce Order.
How long does the divorce take?
Under the new rules, the divorce will take at least 6 months. It is not possible to apply for the Conditional Order (Decree Nisi) until 20 weeks after the proceedings have been issued. At that point you can apply for the Conditional Order and 6 weeks later you can apply for the Final Order. Generally, we attempt to agree financial matters and the arrangements for the children during the 6 month period.
When should I write a new Will during a divorce?
Yes, this should be undertaken as soon as possible from the outset of the case to ensure that your intended beneficiaries are provided for in the event of your death prior to the divorce taking place. You should also seek advice regarding ownership of any property held with your spouse.
Finances on divorce/Civil Partnership
If I enter into a civil partnership rather than a marriage does this protect my assets if the relationship breaks down?
No it does not. The same rules apply to the breakdown of a civil partnership as to the breakdown of a marriage. You cannot avoid a financial claim by an ex-partner if you marry or enter into a civil partnership.
Can I protect my assets by refusing to marry or enter into a civil partnership?
Even in these circumstances it may be possible for your ex to make a claim, this is a complicated area of law that may be subject to change in the near future. In order to protect your assets you need legal advice and to enter into a Cohabitation Agreement.
Can I protect my assets with a prenuptial agreement or equivalent for a civil partnership?
Such agreements are not automatically legally binding. Again this a complicated area of law which may be subject to change in the near future. If there is to be any possibility of protecting your assets you need to be fully advised regarding the effect of such an agreement in your circumstances.
The law relating to matrimonial breakdown (including civil partnerships) is complex and the only way you may be able to protect your assets is to take legal advice prior to any ceremony taking place. Please note such advice needs to be sought ideally 4 months before any ceremony.
Who gets the dog in a divorce?
At present, the law in England and Wales regards pets as personal possessions and, other than considering which spouse could provide the better home, the focus on the financial aspects; which spouse brough the pet initially? Which spouse has been paying for the insurance and veterinary bills? Court proceedings can be stressful and expensive, and so engaging in correspondence or mediation to try and reach an agreement should be attempted. To try and avoid such issues, the couple may wish to consider entering into a “Pet-Nup” – a Pre-Nuptial Agreement setting out intended arrangements for any animals, should the marriage break down in the future!
My family gave my spouse and I money, but we are now getting divorced – do my family get that money back when we sort out the house and savings?
The first thing is to establish whether the money was a gift – for you to keep – or a loan – a transaction with some possibility of repayment/enforcement. If the monies were loaned did the payment represent a ‘soft’ loan or a ‘hard’ loan? Have repayments been made before, to support that the monies were loaned? Often the Courts describe money from relatives or friends, loaned informally with no written demands for repayment, as ‘soft’ loans.
A ‘hard’ loan would usually involve a formal, written arrangement and obligation, with written demands for repayment and a threat of Court action. A ‘hard’ loan probably will be repaid, a ‘soft’ loan may not be repaid from the marital ‘pot’, however we have seen judges say that parents would not expect to receive money back. If the relative or friend is concerned about this, there may be an option for them to become part of the case and put their position across.
My spouse has said about financial disclosure for our divorce – what does this mean?
Both parties are under a duty to provide the other with full details of their financial circumstances together with documentary evidence. We call this financial disclosure. Each party would need to supply full details of their income, with payslips, business accounts etc as evidence. Assets, property valuations or share valuations may also be required, liabilities and up to date statements relating to all debts will be required. Pensions and detailed information would be required from the Pension Trustees including the cash equivalent value of the pension. Proceeding with financial disclosure enables us to identify all the assets of both parties, so we can then attempt to negotiate an agreement.
Do I have to attend mediation?
Mediation is a form of dispute resolution. If you have agreed divorce and financial matters with your spouse, you do not need to access any dispute resolution services. If matters are not agreed, particularly in relation to children, parties are encouraged to attend mediation in the hope of reaching an agreement. Research has shown that mediated agreements produce better outcomes than Court Orders that have been imposed upon the parties. We encourage mediation whenever it is suitable. If parties do not want to attend mediation, then dispute resolution can take place by way of solicitor correspondence or, as a last resort, a Court Application. There is a requirement to have attempted mediation before making an application to the Court.
Will I have to go to Court?
If you have agreed your divorce and financial arrangements then you do not need to attend Court. Your divorce will be processed through the Court as a paperwork exercise instead. However, if after attempting dispute resolution through mediation and/or negotiations through Solicitors, you are unable to agree financial arrangements then you may need to apply and attend at Court.
There are pensions to sort out in our divorce, and we’ve heard of actuaries – what are they?
Actuaries are pension experts who can look at all the pension funds a couple have and calculate how they should be divided to try and ensure that in the future the (ex) spouses either have equalised capital provision or equalised income provision. Alternatively actuaries could calculate how much cash one spouse should receive to offset a pension claim. Actuaries can consider and ‘ring-fence’ funds that were built up before the marriage, if this is relevant.
Will I have to pay Capital Gains Tax on my property if I sell it as part of the divorce?
Potentially yes, but there are exemptions and it is essential to get advice from a financial adviser or accountant from the outset of your divorce to make sure. This is particularly important in a case where there are substantial assets including property.
If I apply to the Court in relation to the financial side of my divorce, how is the Court likely to divide the assets?
This is a difficult question to answer. There is no right or wrong answer, there is no set formula. The Court has a list of factors to take into account and then makes a decision that is fair in all the circumstances of the case. This means it can be quite difficult to predict what a Court will do in relation to a financial claim on divorce. Court is a last resort because the outcome is unpredictable, it can take 6 – 12 months for the proceedings to be dealt with and the costs of such an application for both parties are high.
If I apply to the Court in relation to financial matters on divorce, can the Court order my spouse to pay my costs?
Costs orders are rare. Generally, the Court expects each party to be responsible for their own costs. The Court does have the power to make costs orders but these powers are exercised rarely.
What is a Clean Break Order?
Unless and until the Court pronounces a Clean Break Order, all financial claims remain open. This means, even after the divorce, if you have not obtained a Clean Break Order from the Court then your spouse can make an application to the Court in relation to your assets at any time in the future. The only way to be absolutely sure your ex-spouse cannot make a further financial claim upon you is to apply to the Court for a Clean Break Order. When we settle the financial side of a divorce, the vast majority of cases include a clean break. We would draft an Order setting out the financial agreement reached and including a clean break. This Order is sent to the Court with another document setting out full details of the case for approval by the judge. As soon as the judge has approved an Order including a clean break, the clean break becomes effective and further financial claims are not allowed. Please note, the clean break does not impact on the obligation to pay child maintenance.
Children Matters
How do I resolve difficulties with my ex-partner over arrangements for our children?
Many couples now separate. The divorce rate is running at nearly 50%. Many couples do not marry and simply cohabit. There is no longer a stigma attached to divorce or separation. Research concludes that where parents are able to work together and agree the arrangements for the children following separation, then any damage suffered by the children as a result of their parents’ relationship breakdown is significantly reduced and can be nil. The starting point is therefore to try and reach an agreement with the other parent, if that is not possible, mediation is encouraged. Research shows that mediation produces better outcomes than Court Orders. If mediation is not possible or does not succeed then negotiations through Solicitors can take place and if this is unsuccessful, as a last resort you can apply to the Court for a Child Arrangements Order. We can advise fully regarding mediation, negotiation through solicitors and a Court Application, if necessary.
I’m going to Court and have heard that CAFCASS will be involved – who are they?
CAFCASS are social workers that give advice to the Court in cases involving children. CAFCASS should complete basic safeguarding risk assessments at the start of all cases. These include checks with the police database and short telephone interviews with both parents. In some cases, if there are concerns about domestic abuse, mental ill health or alcohol/drug misuse, CAFCASS may have a longer-lasting role and be asked to investigate for a few months, before writing up a report for Court. Please note, CAFCASS will only become involved in a case if there is a Court Application but they do have a helpful website. Resolution also have a very helpful website.
My ex-partner is in a new relationship and I don’t want our children to see the new partner – can I stop this?
Restrictions should not be put in place in terms of where the parent takes the children, or whom they allow the children to see, unless there are Court Orders in place confirming this, or serious safeguarding concerns – i.e., that the new partner has a history of violence or has alcohol/drug issues that can be established and are not just ‘hearsay’. The Courts encourage, and it is common sense, for parents to only introduce new partners when they are clearly in a settled relationship i.e. that has lasted more than 6 months The introduction should then be handled sensitively. It is very rare for the Courts to prevent children having contact with a parent’s new partner.
Can I change my child’s name without the other parent’s permission?
Parents should not change their child’s name unless they have permission from anyone who has parental responsibility for that child or alternatively, they have a Court Order. Even if the other parent does not have parental responsibility for a child, if that parent is having regular contact with the child then the name should not be changed without that parent’s consent. The Courts can and do order the child’s name to be changed back in such circumstances. Changing a child’s name is a serious issue and it is always sensible to obtain legal advice before proceeding with any such change.
What is parental responsibility?
If a mother gives birth to a child, she has parental responsibility for that child. If the parents are married, the father also automatically has parental responsibility for that child. If the father is named on the child’s birth certificate, the father has parental responsibility for that child. Parents who adopt children have parental responsibility for those children. Parental responsibility means you should have a say in all important aspects of that child’s life i.e. education, medical treatment and religion etc. If you are a parent, but do not have parental responsibility, you can apply to the Court for a Parental Responsibility Order.
Can a step-parent gain parental responsibility? Why would they need this?
Step-parents may not have parental responsibility for a child, even though they may be a significant presence in a child’s life on a day-to-day basis. In order to obtain parental responsibility a step-parent would need to either (1) enter into a formal PR Agreement with the other parents that hold PR and then send the Agreement to the Court to be made legally binding; (2) apply to the Court for a Parental Responsibility Order; (3) apply to the Court for, or be named, in a Child Arrangements Order, as a person with whom the child lives. Whether a step-parent needs to share parental responsibility would depend on the specific family circumstances – if their partner, the parent is on hand, they may not actually need to liaise with school teachers and doctors, but if one parent lives very far away, or the other has health issues of their own, the step-parent may need parental responsibility for day to day purposes, to step in and make decisions in the absence of the parents.
Can I take my child abroad for a holiday?
Taking a child abroad without the consent of every person with parental responsibility is a criminal offence and could lead to a prosecution. If you are intending to take your child abroad on holiday, we need to provide the other parent (or everyone with parental responsibility) with full details of the travel arrangements and ensure they are consenting. If they do not consent, you can apply to the Court for a Specific Issue Order to enable you to take the child on holiday. You would need to take specialist legal advice in relation to such an application.
Can I move abroad with my child?
It is a criminal offence to remove a child from the jurisdiction of England and Wales without the consent of every person with parental responsibility. This means you cannot move abroad with your child unless the other parent (or everyone with parental responsibility) consents. If the other parent will not consent, you can apply to the Court for a Specific Issue Order to enable you to move abroad. You would need to take specialist advice on applying for a Specific Issue Order to enable you to do this. This is a complex area of law, there is no guarantee the Court would allow you to move with the child.
My ex has just announced she is moving abroad and taking our children with her. What can I do?
It is a criminal offence for anyone to remove a child from the jurisdiction of England and Wales without the consent of the other parent (or everyone with parental responsibility). If you believe the other parent is about to move abroad with the children without your consent, it is possible to make an urgent application to the Court for a Prohibited Steps Order to prevent the move taking place. In these circumstances, you need to take urgent legal advice regarding such an application.
My ex has just announced an intention to move from Norfolk to Wales with our children. I do not consent. What can I do?
We refer to these cases as internal relocation cases. It is not a criminal offence for one parent to move from Norfolk to Wales without the other parent’s consent, but it is possible to apply to the Court for an urgent Prohibited Steps Order to prevent such a move taking place. Again, this is a complex area of the law and you would need specialist legal advice urgently to address this issue.
Cohabitation
My cohabiting partner and I are not married, what happens if we separate?
If there is no Cohabitation or Living Together Agreement in place then you do not have an automatic right to stay in property owned solely by your partner and you do not have a right to receive maintenance other than child maintenance. If you are in rented accommodation you have no right to stay if the tenancy is in your ex-partner’s sole name and you are asked to leave. You do not have an automatic right to a share of any possessions owned or purchased by your ex-partner.
Does my partner have rights to my house if we are not married?
This is dependent upon whether there have been any financial contributions made by
your partner to the purchase or renovation of any property which is solely owned by you together with housing needs relating to care of any children. It is best to enter into a Cohabitation Agreement at any point during your Cohabitation in order to mitigate against any claims being made in the future. Alternatively, if you are planning to marry then a Pre or Post Nuptial Agreement will assist.
Costs
How much does a divorce cost?
In relation to the divorce itself, we offer a fixed fee of £670.00 plus vat. There is also a Court fee of £593.00. If these costs are all paid in advance, then we offer a 10% reduction on our fee of £670.00. For example, if you take advantage of the discounted fixed fee, you would pay £603.00, £120.60 vat, the Court fee of £593.00, making a total cost of £1,316.60. We also charge £8.00 plus vat for verifying your identity. Please note, this does not include any work relating to children or financial matters. We do offer a free initial appointment if you are married and require advice regarding financial matters and/or the arrangements for the children. At the free initial appointment we can provide you with detailed advice regarding all issues relating to relationship breakdown, including costs.
What are the costs involved in seeking advice and/or applying to the Court in relation to the arrangements for the children or for a Financial Order?
In some cases we may offer fixed fees for negotiations and/or applications to the Court in relation to financial or children matters. Generally, we charge our hourly rate, which varies depending upon the experience of the fee earner. We do offer fixed fee appointments for £160.00 plus vat for initial advice regarding financial matters or the arrangements for the children and more detailed advice regarding costs can be given at that fixed fee appointment.
Privacy
Can I upload information or paperwork from my Court case to social media?
No! Information about your Divorce settlement or from your Children Act proceedings is confidential and must not be shared or published. Anybody sharing or recording information or Court Hearings could be committing contempt – in a recent case called Her Majesty’s A-G v Hartley (Contempt) [2021] the father who had shared information on Facebook was sentenced to 10 months in prison and to pay the costs of the case against him.
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