Divorce / Dissolution, Separation And Finances

You can apply for a divorce provided that:

– You have been married for over a year;

– You can show that you, or your spouse, have a specific connection to England and Wales; and

– You can satisfy the Court that your marriage has broken down irretrievably. To do so you will need to prove one of five facts:

1. Adultery
2. Unreasonable behaviour
3. Desertion for a period of at least 2 years
4. Separation for a period of at least 2 years and your spouse consents to the divorce
5. Separation for a period of at least 5 years.

If you think that any of the above apply to you, or even if you are not sure, please contact our solicitors as they will be able to explore the facts further with you.

Once satisfied that the grounds for divorce have been proved, the Court will pronounce Decree Nisi (a conditional order). This is followed sometime later by the Decree Absolute which is the final order that formally ends your marriage after which you will be free to remarry.

The divorce process itself does not deal with any financial claims that may exist between you and your spouse as a result of your marriage.

In terms of the costs, it’s difficult to be precise as it very much depends on your individual circumstances. Generally, the costs of the divorce on its own (excluding any financial and/or children issues), if undefended can be fairly reasonable and inexpensive.

If you have been divorced outside of the UK, your divorce may be recognised by the Courts of England and Wales provided that:

• The divorce is effective under the law of that country;

AND

• At the date of the commencement of the divorce proceedings either party to the marriage was habitually resident, domiciled or a national of that country.

It should be noted, however, that there are circumstances where your foreign divorce may not be recognised in England and Wales even if you are able to show that it is recognised in the country where it was obtained. It is therefore essential that you seek specialist advice from the outset.

If you think that this applies to you, or if you have any other questions concerning your foreign divorce, please contact us.

The process of dissolving (ending) a civil partnership is very similar to that of a divorce, as set out above. One exception, however, is that you cannot rely on adultery when applying to dissolve your civil partnership.

If satisfied that the grounds for dissolution have been proved, the Court will issue a conditional order. This will be followed sometime later by a Final Order which formally ends your civil partnership.

As with the divorce process, the dissolution of a civil partnership does not in itself deal with any financial claims that may exist between you and your civil partner as a result of your civil partner.

Not a present. There are provisions within the Marriage (Same-Sex Couples) Act 2013 for civil partnerships to be converted into marriages but the government has yet to set out how this is to be achieved. If you have a civil partnership you will need to petition to dissolve your civil partnership first before applying to get married.

For more information about the dissolution of your civil partnership please contact us.

The Court prefers families to agree to the arrangements for children privately between themselves or through mediation. They will only become involved if called upon to do so by either parent or another interested third party. The Court will only make an Order in respect of a child if it considers that it is in the best interest of the child to do so.

Yes. A Decree Absolute in divorce proceedings or a Final Order in dissolution proceedings will not deal with the potential financial claims arising as a result of your marriage/civil partnership. Unless these financial claims have been formally dismissed by an Order of the Court they remain alive. This means that a financial claim can potentially still be brought many years after a marriage/civil partnership has ended. It is therefore advisable to resolve the financial issues before finalising the divorce/dissolution, so that you can both move forward in your lives with peace of mind.

If you have been divorced outside of the UK, you may apply for a financial order provided you can demonstrate that:

• Your marriage has been dissolved or annulled, and that divorce or annulment is recognised as valid in England and Wales

AND

• You are either habitually resident or domiciled in England and Wales, or that the marital home is in England and Wales.

It’s a two-stage process. Firstly you will need to apply for permission from the Court. If permission is granted, then you will be able to proceed with your application for a financial order in relation to income or capital.

Our team is very experienced in dealing with international divorce and financial issues. For more information please contact us.

You can agree the division of any assets directly with your spouse/civil partner or with the assistance of say a Mediator. If you are unable to reach an agreement about how the financial issues are to be resolved, then either the Court or an Arbitrator can make the decision.

The Court has broad powers to determine how the matrimonial assets are going to be divided on Divorce / Dissolution. They can make orders in relation to income and capital. There is no mathematical equation that the Court will adopt when dealing with the division of the assets as each family is different and every case unique.

The Court will take into account all the circumstances of the case and give first consideration to the welfare of any child of the family. They will also take other factors into account such as:

1. Income, earning capacity, property, and other financial resources.
2. Financial needs, obligations, and responsibilities.
3. The standard of living enjoyed before the breakdown of the marriage/civil partnership.
4. The age of each party, health and the duration of the marriage/civil partnership.
5. Contributions made by the parties (this can include looking after the home or caring for the family).

When attempting to sort out the financial issues it is extremely important that both parties provide full and frank financial disclosure, so that everyone knows exactly what the financial resources are in order to make informed decisions on what should happen. You will find that solicitors and barristers will be unable to advise you properly on the merits of any settlement proposals without full disclosure being given by both parties.

Financial disclosure is usually provided by the use of a financial statement form called a ‘Form E’ setting out full details of assets, liabilities, and income.

Spouses / civil partners are entitled to share each other’s pension from the date of marriage / civil partnership to the date of separation. On divorce/dissolution, the Court has the power to make orders in relation to the parties’ pension assets. When doing so, the Court will usually view pensions separately from other assets as it is widely acknowledged that funds in pension schemes may not be readily available and that pensions come in many types.

There are various ways in which the Court may deal with your pension in divorce/dissolution. These can include:

• Off-setting – giving one party a greater proportion of the assets to compensate for their lack of pension or loss of benefit.
• Attachment Orders – requiring payments to be made to the spouse/civil partner of the pension holder.
• Sharing Order – requiring the pension scheme to transfer a share of the member’s pension into the other spouse/civil partner’s pension scheme.

The word ‘maintenance’ is frequently used when referring to income orders on divorce/dissolution. There can be maintenance for you (the spouse), or for your children.

Orders for spousal maintenance (also known as periodical payments) are payable from one spouse to the other.  The level and duration of spousal maintenance will very much depend on your income needs, and the available resources to meet those needs.

When it comes to maintenance for any children, this is now largely dealt with by the Child Maintenance Service (CMS). The CMS will calculate what income the ‘paying parent’ is required to pay to the ‘receiving parent’ based on a fixed percentage of their gross weekly income. It is not necessary to make an application to the CMS for them to calculate what maintenance the absent parent is required to pay, as this can be agreed between the parents. This is what is known as a “family-based arrangement”. However, if a dispute later arises then an application would then have to be made to the CMS to resolve the issue and fees will apply.

There are some circumstances for which the CMS does not have authority and which require an application to be made to the Court. These are as follows:

• Where the absent parent lives overseas
• For stepchildren
• If the absent parent earns more than £3,000 gross per week
• If money is required to pay University fees
• If money is required to meet the costs of a child’s disability
• For children who have completed secondary education.

Once again you are expected to have attempted to reach an agreement directly with the other parent before considering making an application to the Court.

Not yet – whilst the long overdue changes to the existing law on divorce and dissolution received Royal assent on 25 June 2020, the provisions are not expected to be brought into force  until at least the Autumn of 2021.

Whilst the ground for divorce and dissolution will remain the same in that you will still be required to show that your marriage or civil partnership has irretrievably broken down, here are some of the notable changes expected to be introduced:

• It will no longer be necessary to prove one of the five facts. This means that you will no longer be required to prove that your marriage has irretrievably broken down by either alleging adultery, unreasonable behaviour or desertion for a period of at least two years, or demonstrating that you have been separated for a period of at least two years if your spouse consents, or five years if your spouse does not consent. Under the new law you will need to provide a statement of the irretrievable breakdown of the marriage or civil partnership.
• The legal terminology for key stages during the divorce process are to be replaced. For example, the ‘decree nisi’ will become known as a ‘conditional order’ and the ‘decree absolute’ will become a ‘final order’.
• Couples will be allowed to jointly apply to end their marriage or dissolve their civil partnership.
• It will no longer be possible to contest a divorce.
• There will be ‘cooling off’ periods during the proceedings which some argue may slow down the divorce process.

It is hoped that the change to the legislation will support couples who wish to separate as amicably as possible. However, It is important to note that current law governing the arrangements for children, the division of the matrimonial finances and the Court’s approach to marital agreements such as pre-nuptial agreements is not expected to change under the new divorce legislation.