Our Top FAQs - A Useful Reference if Considering a Divorce
We have set out below some of the questions which are frequently asked when someone is considering or facing divorce or other breakdown of a relationship. We hope that these answers provide a useful starting point for you and help point you in the right direction for further assistance.
None of the answers amount to legal advice in any particular circumstances and you must, of course, seek your own legal advice on your own situation.
1. How do I start the divorce process?
A divorce in England is a Court ordered termination of the marriage contract. Therefore, only the Court can end a marriage and grant you a divorce.
The first thing you need to consider is why you are asking the Court for a divorce. Unlike some jurisdictions, England does not allow a “no fault” divorce and you must explain to the Court why you wish to be divorced.
You do this by your Divorce Petition. It is with the filing of the Divorce Petition that the process begins.
We offer a fixed fee service for the entire divorce process which includes filing the petition, obtaining an interim Divorce Order (Decree Nisi) and obtaining a final Divorce Order (Decree Absolute) where your spouse does not contest the divorce.
2. Can I get a divorce?
We can almost certainly obtain for you a divorce. Despite recent publicity about “defended divorces”, it is very rare that we are unable to persuade the Court to grant a divorce, whether your spouse is cooperative or not. If you think that your spouse may be resistant to the idea of a divorce and is willing to attempt to make your life difficult in achieving the end of the marriage, then you should see legal advice as soon as possible. It is particularly important your petition is properly framed to give the Judge all the information that is needed to stand the best chance of the Court approving the divorce regardless of your spouse’s views.
3. What if I want to contest a divorce?
If you wish to contest your spouse’s decision to seek a divorce, then you must indicate this to the Court when you are served with a Divorce Petition. This will commence an alternative process where the Court will hold a trial to determine whether the reasons for the divorce are firstly, true and secondly, serious enough to warrant a divorce. Depending on the facts being alleged, it may simply be necessary to prove their truth. For example, if it is alleged that you have committed adultery and that this is proven, then a divorce will be granted. However, if it is alleged that you have behaved unreasonably and therefore your spouse cannot be reasonably expected to live with you, the Court retains a wider discretion as to whether to grant the divorce even if it finds the behaviour alleged has, in fact, occurred.
Contesting a divorce is lengthy, expensive and rare. However, if this is the right step for you, then please contact us as soon as you can.
4. Do I need to attend Court to get a divorce?
Unless one of you is contesting the divorce, or there is some other particular reason why matters need to drawn specifically to a Judge’s attention, then you will not need to attend Court.
5. Who pays for the costs of a divorce?
There is currently a Court fee of £550 to file a petition for divorce. You will have to pay that in the first instance, together with the legal fees you incur with your lawyer. However, if the divorce is successfully granted, then it is usual for the Court to order the other party to pay those costs. So long as your now ex-spouse has the means to pay, he or she will be most likely ordered to pay most of your costs.
6. Do I need to come to a financial arrangement before Decree Absolute and the finalisation of the divorce?
No, you do not. However, there are often very good reasons for not finalising the divorce before a financial settlement has been reached and approved by the Court. This is particularly important where one party has benefits under a pension or other occupational scheme which depend on the status of spouse or civil partner. We would recommend, therefore, that you take legal advice before commencing the divorce process and, if you are facing a divorce from your spouse, speak to us immediately to see what you can do to prevent losing any financial protection you may have upon divorce.
7. Do I need a Separation Agreement?
A Separation Agreement is, in our view, rarely a good idea because it is inferior to a Court approved financial settlement, and can lead to additional costs and unnecessary duplication. However, there are sometimes practical or religious reasons which necessitate consideration of a Separation Agreement and, where they are in your best interests, we can negotiate and draft such an agreement on your behalf.
8. What are the grounds for divorce?
In England and Wales, there is only one ground for divorce and that is that the marriage has irretrievably broken down. However, this can be proved by one of 5 set of facts.
- Unreasonable behaviour
- Separation for 2 years with consent
- Separation for 5 years
9. How do I prove unreasonable behaviour?
What is unreasonable will depend on many different factors, but here are some of the facts that our clients have achieved a divorce with: -
- Financially controlling behaviour
- Persistent neglect in favour of hobbies and other interests
- Exclusion of one spouse’s wider family
- Persistent rudeness, domineering or other unpleasant conduct
- Constant belittling, undermining and degrading of spouse
This list contains merely examples. If you would like advice as to whether the behaviour you are subject to would be considered unreasonable behaviour for the purposes of a divorce, please do contact us.
10. How do I prove adultery?
It is often not necessary to prove adultery if the other party will admit to the behaviour. However, if this is not the case, then the Court will need evidence on which to base its decision. The Court will, however, be ready to infer a sexual relationship where there is no direct evidence but the circumstantial evidence is significant. Evidence of unexplained overnight absences, unexplained hotel bookings or suggestive messages can all assist the Court in determining adultery. Indeed, the Court has, in the past, found adultery with the evidence of a footprint on a car dashboard alone.
11. What does adultery mean?
Adultery means sexual intercourse with someone of the opposite sex. The law shares former US President Bill Clinton’s definition of sexual relations! However, behaviour falling short of the definition of adultery will almost certainly found grounds for unreasonable behaviour.
12. What about religious considerations - I am Jewish, a Muslim, a Catholic?
Divorce in England and Wales is a secular action and in order to be divorced, in the eyes of the law, and have all the necessary financial and other protections, a civil divorce is usually necessary. However, this often takes place in conjunction with a religious procedure, and we can advise on appropriate timings of both an act with sensitivity to the particular needs of each religious belief.
13. What rights do we each have in respect of children?
The first and most important thing to say is that in all Court proceedings, the starting point is that the children come first. It is also imperative that issues of financial settlement and the children are kept separate so that one is not used as a bargaining chip for the other. However, the Court will take into account the financial consequences of being both a main carer and a parent having regular contact when considering the financial needs of each party.
Fortunately, very few disputes relating to children require determination by the Court and we find we are able to negotiate a solution for our clients in the vast majority of cases. However, if Court proceedings are necessary, we can use the Court process to ensure that your children spend the appropriate time with each parent where this is possible but also have a stable base to call home.