GAYNOR DICKENS, HEAD OF THE FAMILY LAW DEPARTMENT AT GRAHAM EVANS & PARTNERS, ANSWERS OUR QUESTIONS AROUND THE DETAIL OF DIVORCE.
On what grounds can you seek a divorce?
You are entitled to seek a divorce if you believe your marriage has irretrievably broken down. The irretrievable breakdown of the marriage is evidenced in one of five ways:
Unreasonable behaviour (a broad term covering a wide range of behaviours from physical violence to subtle behaviour issues such as control or a lack of emotional support).
There are two on a “no fault basis “ which covers if you have lived apart for more than two years and both agree to the divorce, or if you have lived apart for more than five years, even if your spouse doesn’t agree.
Everyone’s marriage is different of course which is why family lawyers can help you navigate through the legalities of divorce and provide the least acrimonious solution.
How do you file for divorce?
You need to fill in a divorce petition document to start a divorce and that needs to go to the court with the original or a proper duplicate of your marriage certificate. You will have to pay a court fee of £410 unless you are on a low income.
Once divorce proceedings start, the court sends the papers to your spouse which he or she needs to respond to. It is their opportunity to agree or disagree with the divorce and if they don’t respond within 21 days, as long as you can prove they have received the paperwork, the divorce can continue as if they had agreed.
What is a decree nisi?
A decree nisi does not end the marriage. It is the document that says that the court doesn’t see any reason why you can’t divorce. You can apply for a decree nisi if your husband or wife doesn’t defend your divorce petition. It is still possible to apply if they don’t agree but you may need to attend a hearing at the court where a judge will decide whether to grant it.
When does the marriage legally end?
Your marriage legally ends when you have your decree absolute or as it is also known, the final decree. If you have started the divorce proceedings you can apply for this six weeks and one day after your decree nisi. If your spouse started the divorce proceedings you will have to wait a little longer and can apply for this four and a half months after your decree nisi. Once the court has granted the decree absolute you are divorced and free to marry again if you wish. However there may be very good financial or other reasons not to apply for your decree absolute. Speak to a specialist family solicitor to ensure you are doing the right thing.
Do you have to appear in court to reach a financial settlement?
No. If you can agree a financial settlement, this may not be necessary. But even if you do agree it is imperative you get what is known as a ‘clean break order’ to ensure that the agreement cannot unravel at any point in the future. Many people believe that your former spouse is not entitled to anything you acquire after the divorce but this is not the case. It is a misconception, so do seek proper legal advice or it could lead to very expensive consequences.
With over 25 years of experience in family law I understand that when relationships end there are financial as well as emotional stresses. We work very hard to help resolve these difficult issues in as constructive, fair and positive a manner as is possible. I’m a member of Resolution, the specialist Family Law panel organisation that is committed to resolving disputes in a constructive and non-confrontational way.
How do you decide what happens to the family home?
Reaching an agreement on how to finance two separate households from income and assets that previously provided for only one is a concern for most people. There are many practical concerns to contend with. For example, the value of a marital home can be significant but so can pensions. Pensions can be an extremely complex area and it is important to ensure that specialist legal advice is sought when dealing with assets of this nature.
The first consideration of the courts is the welfare of any children. Property division in divorce needs to take into account the fact that children are the court’s paramount consideration. Again, I have found that the best way to reach fair and practical settlement is through a non-confrontational and constructive approach, where parents remain focussed on the long-term wellbeing of their children.
What about child support?
When parents separate, both still have a legal duty to provide for their child financially. Child support means regular, reliable financial support to help cover a child’s everyday living costs. The parent without the main day-to-day care of the child pays child support to the parent with the main day-to-day care.
Most parents arrange child support between themselves but if you can’t agree, or the arrangement isn’t working, you could apply to a statutory child maintenance service or if you agree you can apply to the courts.
Finally, what advice would you give anyone facing divorce?
Being prepared with paperwork, any legal documents and financial information will certainly save time and therefore cost before discussing your divorce with a lawyer. Having a sense of where you would like to be in a few years’ time is useful, helping you to focus on the future and shaping the agreement you would like to reach in a positive way. If it’s possible, talk to your spouse about the type of settlement you’d like and arrangements for your children. Also, try to look at the whole picture not just one aspect such as your marital house. Many other factors matter, such as pensions, day-to-day living costs and the wellbeing of your children also needs to be considered.
We understand that no two situations or families are the same and recognise how emotionally draining a relationship breakdown can be. No matter the issue, it is highly likely that we will have seen your scenario before so will have the right experience to help resolve your dispute. We make it a priority to do all we can to reach fair and practical agreements that help relationships between family members remain positive.