Frequently Asked Questions
What can I do to avoid court proceedings?
- Court proceedings should always be a last resort in matrimonial cases. Parties who are willing to settle a dispute without the help of a third party should be encouraged to do so as a starting point. Agreements can be reached ‘over the kitchen table’, via solicitor correspondence, by way of mediation, via the collaborative process or through arbitration. Any of these options coupled with the correct legal advice mean that in the majority of cases it should be possible to avoid the cost and stress of going to court. On other occasions disputes are intractable and it is inevitable that court proceedings will ensue.
- In the event the issues being discussed are too complex or there are tensions between the parties, it may be easier to approach a solicitor to negotiate matters on your behalf. Solicitors are used to such negotiations and understand what is a fair and reasonable settlement. They can remove the burden of resolving financial matters from the client whilst being able to talk them through the process.
- During the process of mediation the parties attend a series of face to face meetings, assisted by a mediator who is a professional trained to help resolve disputes over all issues faced by separating couples, or specific issues such as arrangements for children. The mediator will assist the parties to identify those issues in dispute and try to enable the parties to reach a consensus without proving legal advice. Clients are advised to see independent legal advice before coming to an agreement in mediation.
- By virtue of the collaborative process, each person appoints their own collaboratively trained lawyer and all parties meet face to face with their appointed representatives to attempt to reach an agreement.
In the event an agreement is reached, each of the parties and their representatives sign an agreement that commits them to trying to resolve the issues without going to court and prevents the representatives from further acting in the event the agreement breaks down.
- In family arbitration the parties appoint an arbitrator, who acts as an unofficial judge. The arbitrator’s decision on financial and property disputes arising from family relationships will be final and binding between the parties.
Does it make any difference whether me or my partner are the Petitioner in divorce proceedings?
In the divorce procedure, the party who files the petition is known as ‘the Petitioner’ and the spouse is known as ‘the Respondent’. The advantage of issuing the proceedings as the Petitioner, enables you to select the grounds for divorce and dictate the pace of the proceedings. As the Petitioner, you may also can seek an order of the court that your spouse pay your legal costs.
Can I apply for my final decree in divorce before finalising financial matters?
In the event a Decree Absolute is obtained and financial matters have not been dealt with, a party to proceedings may forfeit certain rights, for example pension rights. A Decree Absolute dissolves a marriage but does not prevent an ex-partner from filing a financial claim in Court.
If you are the Respondent and you do not in the course of Divorce proceedings make an application for property or finances and then remarry after Decree Absolute, you will lose important rights to make any claims on property or finances.
Where the Decree Absolute has been granted by financial claims remain open, it is possible for an ex-partner to return to issue financial proceedings many years later. It is therefore important to consult with a solicitor to settle all financial matters at the time of the divorce.
What happens in mediation?
The mediator will liaise with the parties at a MIAM meeting about what mediation entails.
Further meetings will be scheduled at which parties you may look at arrangements for children, exchange financial information with a view to negotiating a financial settlement and other options. The mediator may suggest other help, such as financial advice or support for your children, but will never offer legal advice. The parties are advised to consult with a solicitor before coming to an agreement.
Once the parties have firm proposals the mediator can draft a document recording the agreement in a summarised form, called a ‘Memorandum of Understanding’. After the parties have received legal advice their respective solicitors can convert the agreement into a legally binding document and oversee any necessary implementation.
How long does the divorce process generally take?
If both parties agree to the divorce, a divorce usually takes around six months to legally finalise. This will however take longer if there are other matters, such as, financial, property, or child arrangements to sort out. Although each case varies, on average concluding a divorce and reaching a financial settlement takes around a year.
What is each party entitled to in a divorce?
There is no fixed answer to this question as each situation varies. The financial settlement usually depends on the parties’ circumstances and their needs. The Court generally considers a criteria checklist, which includes looking at the income and earning capacity of both parties, the financial needs, the standard of living enjoyed by the parties before the breakdown of the marriage, the age of each party, the contributions which each party has made and the conduct of each party. The first priority is providing any children of the family with a home.
There three general areas which the court will consider in respect of financial remedies in divorce are: child maintenance, spousal maintenance and distribution of marital property and assets.
Do I need to attend mediation before commencing court proceedings?
Not all parties will be in a position to mediate their issues and the mediator will assess the suitability of the matter for mediation at an initial meeting.
Since April 2011, there has been a requirement (with some exceptions) that anybody wanting to go to court should attend a meeting (called a MIAM) with an appropriately qualified mediator to find out about mediation and other non-court options.
Publically funded mediators will also assess your eligibility for financial assistance and explain charges if you are not eligible.
If either party decides not to mediate and wishes to proceed to court, they will still be expected to attend a MIAM meeting, as the court will expect a certificate from the mediator before proceedings commence.
I do not have the funds to seek legal advice. What should I do?
This funding is available to people who may have a low income and would otherwise not be able to put forward a case. In most cases there will be a ‘means’ and ‘merit’ test in order to establish if a client is eligible for this and funding will only be given if there is a strong benefit to the client. You can obtain legal aid (provided you qualify on capital and income) in the following scenarios: If you can evidence you are a victim of domestic violence. If you can evidence you have a child who is at risk of abuse from a partner. If you and your partner agree to go to mediation. Please find details of public funding by clicking on this link:
Other forms of funding
• Funding assistance may be available for union members.
• Under your domestic household insurance? Check the policy terms.
• Litigation loan funding. There are specialist providers and a solicitor can assess whether you can use such a facility. You will pay a small amount of interest on the loan and you will need some capital assets (such as property) in order to pay off the loan at the end of the case.
• Commercial lending from banks. Unsecured loans available on the high street or online.
• Credit card borrowing is acceptable in the short-term if the borrowing can be discharged in the settlement.
• Cashing in any existing investments. If you possess savings accounts or ISA’s these could be utilised, but do not do so before discussing the matter with your solicitor.
• Borrowing from family and friends. If you opt for this, it is important to ensure it is a ‘hard loan’ – ie one that must be paid back and is evidenced in writing. If the loan is seen as ‘soft’ by your partner’s lawyers, they may argue it is not to be paid back and therefore you cannot count it in as a liability when determining finances.
• A ‘Sear Tooth’ agreement is an agreement between you and your solicitor. The solicitor commits to carrying out the case work by securing legal fees against the settlement. These agreements are risky for solicitors because the final settlement or court order may differ from what was expected. There can also be delays in solicitors getting paid.
• A voluntary payment from your spouse or partner towards your legal fees, which can be credited to them in any financial settlement, with a view to avoiding court proceedings.
• In the case of divorce or civil partnership financial orders: applying to the court for an order that your spouse or civil partner pays your legal fees. If you are married or a civil partner you can apply for interim financial help towards your outgoings called maintenance pending suit.
• If you are making a financial claim on behalf of children under Schedule 1 of the Children Act 1989. It is possible to seek interim lump sums on account of legal costs but certain tests have to be satisfied.
What are my options as the victim of domestic violence?
There are four types of injunction available through civil law to help protect people from domestic abuse, which can be applied for through a solicitor:
Non-Molestation Order – to protect applicants and their children from harassment, threats and violence. Orders can be tailored to individual cases to stop abusers from doing particular things. Breaching a non-molestation order is a criminal offence and can carry a punishment of up to five years in prison.
Occupation Order – to prevent an abusive ex-partner from living in or attending the family home.
Forced Marriage Protection Order – to change the behaviour of anyone trying to threaten or manipulate a family member into marriage against their will. Breaching a Forced Marriage Protection Order can carry a punishment of up to two years in prison. If you have concerns about children, you can also concurrently apply for a:
Prohibited Steps Order– which can be granted by a court where the parties share Parental Responsibility, to prevent a parent from certain actions, such as taking a child out of the UK, or removing them from school, especially if there is concern over the parent not returning the child.
A perpetrator of domestic violence may be charged with harassment, criminal damage, assault, actual bodily harm, grievous bodily harm, rape, murder etc. Judges can also impose a Restraining Order (like a Non–Molestation Order), with particular conditions attached to prevent the abuser from contacting or hurting a victim. Breaching the Restraining Order can be a criminal offence.
My partner and I have reached an agreement over financial matters in divorce/separation. What should I do now?
You should seek the advice of a solicitor who will review the terms of the agreement. In the event there are no changes to the agreement subsequent to your seeking legal advice, the terms and conditions of the agreement will be drafted in what is known as a ‘Consent Order’. The document is lodged with the Matrimonial Office of the court and sealed by the court to make it binding. Both parties must also complete a Schedule of information which is attached to the agreement setting out the basic background to the marriage and separation and the parties’ financial positions.
What is the divorce process like?
- Normally the divorce process is straightforward and involves three online applications being submitted to the Court (starting with the divorce petition).
- At the start of the proceedings, a divorce petition must be completed by the party applying for the divorce (the petitioner) and this application costs £550. The application is then sent to the other party (the respondent), who can either agree to the divorce or disagree ad defend proceedings. Neither party will be required to attend Court for any hearing in connection with a divorce, unless the respondent defends the divorce proceedings.
- The respondent must respond to the petition by completing an acknowledgement of service form and returning this to the court before the next stage of the process leading up to the penultimate order known as the ‘Decree Nisi’.
- The final Order divorce is known as the ‘Decree Nisi’ and can be applied for 6 weeks and one day after the Decree Nisi is pronounced by the court.
When can you get a divorce?
- If you have been married for over a year
- Your relationship has irretrievably broken down
- Your marriage is legally recognised in the UK
- The UK is either of the parties’ permanent home.