You’ve arrived at the point where you need go through the process of dissolution or divorce.
You may have been milling things over for months or even years. Alternatively, you may be in shock because something has happened to lead you to want to separate or divorce. This event could be discovering that your partner is having an affair, suffering from a form of domestic abuse or meeting someone new yourself. Maybe you don’t want a divorce or dissolution. On the other-hand, you could both feel that there is just no reason to carry on. Whatever the circumstances, it’s over.
There are many reasons why people decide that they want to separate or divorce from their partner. For some couples, there may be no particular reason for a couple to drift apart. Maybe you have been told by your partner that they want to separate or divorce YOU. The scenarios for relationships ending are almost infinite.
Make a plan
Whatever the circumstances in which you have found yourself teetering on the edge of uncoupling, the same things apply; you need to have a plan. There are many strands to a partnership and you need to find the best way to untie the knot.
Whatever you do, don’t stick your head in the sand.
Pretending it’s not happening may, in years to come lead you to wish that you had been more assertive. However hard it may be, there are resources available to you, regardless of your financial situation. You may find yourself one of the many getting a divorce acting for themselves as a “litigant in person”.
You can find help
The thing is not to panic. There are thousands of people who have been through this process and there will be thousands more. When things seem really tough, you must set yourself a goal and believe that they can only get better. You may end up in a different house, changing your career, or living with less money. Whatever happens, from now on you have to be adaptable and create positives. Here at The Group Hug, you can find support from others by chatting in our safe forum. You will also find informative blog posts from experts.
What’s the difference between a Civil Partnership and Marriage?
In 2019 the Civil Partnership (opposite Sex Couples) Regulation 2019 allowed opposite-sex partners to also enter into civil partnerships. This made everything equal for both opposite-sex and same-sex couples. A man and woman no longer have to get married; they can enter into an agreement without saying vows. A civil partnership is formed by signing the civil partnership document in front of witnesses and a registrar.
As of December 31st 2019 both sets of couples could enter into a civil partnership. Civil Partnerships were originally introduced in the early 2000’s by the Civil Partnership Act 2004 for same-sex couples, to “bridge the gap” before the law around same-sex marriage was introduced. The act finally enabled same-sex couples to form a legal bond similar to a marriage and have the same rights around things such as inheritance.
Everyone now has the same coupling rights
In 2013 the Marriage (Same Sex Couples) Act 2013 came into play allowing same-sex couples to finally marry. This meant that same-sex couples could choose whether to marry or enter into a civil partnership. One of the differences between a marriage and a civil partnership is that when a couple get married, the marriage certificate only details the name of the parties fathers. In a civil partnership the names of both parents of each party are named.
The differences between marriage and a civil partnership
If you are in an opposite-sex or same-sex relationship, you now have the same options to legally tie yourselves. There is only one factor which is different when it comes to a reason for divorce or dissolution, and that is that a person cannot commit adultery within a civil partnership. Adultery can only happen when a married person has sex with another person outside the marriage (that person has to be of the opposite sex too). Being in a civil partnership means you are not married, but, you guessed it, you are in a civil partnership.
If you are entering into a civil partnership you cannot define your relationship as a marriage. You are not “married”. To be married, a couple exchange spoken words or vows. A civil partnership is formed when both parties have signed the civil partnership document in the presence of a registrar and two witnesses.
Entering into a civil partnership does not require a ceremony and it’s recorded electronically, whereas marriages are registered on paper.
How does the rest of the world look at Marriages and Civil Partnerships?
Every country is different, and although opposite-sex marriages are recognised internationally, the same can’t be said for same-sex marriages or indeed for civil partnerships between any couple. It all depends on the laws of the country you are in. So it’s worth considering, if you are an opposite-sex couple, that it might be more beneficial to go into a marriage as it’s world recognised. For same-sex couples, unfortunately the world still needs to catch up on marriage or civil partnership.
What happens in a divorce or dissolution?
The divorce or dissolution process formally ends a marriage or civil partnership. The law presumes that as adults and/or parents you will be able to organise the separation of the finances and children yourselves. However, if you cannot come to an agreement, then you can apply for the court to assist in resolving issues. In an amicable divorce or dissolution, a couple will use mediation, an online portal, one couple one lawyer or a solicitor to negotiate between them.
Children and Finances are seen as two separate matters and although there are obvious crossing points such as child maintenance, the cases for children and finances will run separately. This means that you could see yourself resolving issues around child arrangements while financial matters are still ongoing.
Although the process for divorce or dissolution is much the same, there are some slight differences in how things are done and the terminology used.
Make sure you get professional advice before agreeing to anything with your future ex. With emotions running high, it’s easy to make rash decisions now and have future regrets.
What is the process for getting a divorce or dissolution?
When a couple divorce, a lot depends on how amicable they can be and it is worth bearing in mind that it doesn’t matter how furiously you try and divorce you will probably end up at the same conclusion. If you cannot work things out, then the matter will have to go through the courts to decide the fairest outcome.
Other things to consider will be assets, did one party acquire theirs thorough inheritance, did one spouse have an asset before the marriage? Also taken into consideration will be whether or not there are children and their ages. If there are children, it can become irrelevant how assets were acquired if one party needs those assets to be added to “the pot” to, for example house themselves and the children.
There are many paths you can take to get to the end goal, which is for the court to formally end your divorce or civil partnership and for both parties to be able to move on with their lives. For both of these types of legally formalised relationships, the process is similar, if not the same so we’ll refer to both as “divorce”.
You need to be married for at least a year before you can start divorce proceedings. If you have not reached this point then you could apply for an annulment or opt for a legal separation, which can also be referred to as a judicial separation. Successfully getting a marriage annulled is very rare, so you might find it easier to wait it out and divorce when you reach the point of a year. The process can be slow and you may find yourself over the year mark before any annulment anyway.
What is the reason for your divorce?
To proceed with a divorce you have to first decide on which of the five reasons you are going to use to prove that the marriage has “irretriveably broken down”. Then, you need to complete the court application which is called the divorce petition. If you do it first, you will become the petitioner with your spouse taking on the title of the respondent. There are new divorce laws coming into play in around Autumn 2021 which will mean that there can be a joint application if a couple wishes.
The dissolution of a civil partnership and the dissolution petition
With a civil partnership, one party lodges a document called a Dissolution Petition with the court, along with any applicable fees. The petition sets out the details of the civil partnership, the details of the couple, any children and the grounds or reason for the dissolution. If there are children, then a Statement of Arrangements for Children will detail who the children live with, where they go to school etc. The court “issues” the petition when it has received it; the petition is stamped and a copy is sent to the other party and they are also known, as in divorce, as the respondent.
On receiving the petition, the respondent has to acknowledge receipt of the document within 7 days, by completing a form called an Acknowledgement of Service. The court sends a copy of this form to the petitioner for their records. Again, as in divorce, if the respondent agrees to the petition then it is called undefended or uncontested but if it is defended or contested, then the respondent has 21 days to file an answer to the court.
The Conditional Order and Final Order
The petitioner swears an affidavit confirming the contents of the petition which is then sent to the court. After this, just the same as in divorce, there are two stages after the issuing of the Certificate of Entitlement to a Dissolution, which means that the dissolution is uncontested and the documents are approved. Firstly there is a Conditional Order (which is like a decree nisi) and secondly there is the Final Order (which is the equivalent of the decree absolute).
The conditional order means that the court is satisfied with the reasons for the dissolution to be granted, but like a decree nisi, it is not the end of the marriage or civil partnership. After 6 weeks and one day of the date of the conditional order, the petitioner can apply for the final order which is the formal document ending the civil partnership. If the petitioner does not apply for this, then after three months, the respondent can apply for it.
Regardless of whether you are in a Marriage or Civil Partnership, ending it seems fairly simple. Inevitably there will be twists and turns and necessary negotiations taking place and that’s where it is important to seek professional advice. Even if you are amicable; you don’t want to have regrets in the future. You must think about the financial road ahead and your relationship with any children.
What are the reasons you can give for a marriage or civil partnership irretrievably breaking down?
If you are over the year-long period, then you can apply for a divorce. You will however have to have one ground for divorce and that is that the marriage has irretrievably broken down because of one of these five reasons:
This can apply if the respondent has had sexual intercourse, outside of the marriage with someone of the opposite sex. In the eyes of the law, a person cannot commit adultery with someone of the same-sex and this is why same-sex couples cannot use this reason for the annulment of a civil partnership or marriage.
The definition of adultery is voluntary sexual intercourse between a married person and a person who is not their spouse. Therefore a couple in a civil partnership cannot commit adultery as they are not “married”, even though it may be seen as cheating on the other person and untrustworthy. In the eyes of the law, adultery involves a person who is “married”.
You can only apply to divorce up to 6 months after the act of “adultery” – so if you decide to try and forgive your spouse and then after 6 months decide you can’t, you cannot use adultery as your reason. After six months, the law considers that you have forgiven your spouse. The 6 months starts at the point where you found out about the adultery, so if you subsequently find out about other acts of adultery, even with the same person, you can start the 6 month period over again as you have just found out.
Can you prove adultery?
The applicant needs to satisfy the court that the respondent has committed adultery and that they cannot possibly continue to live with their spouse. It is very difficult to prove adultery unless the respondent admits to it and for many, even though they want the adultery to be legally recognised and see it written on court papers, they have to opt for an unreasonable behaviour petition instead. It may seem unjust at the time, but in years to come, when it’s all over, the “reason” will seem less important. At the end of the day both you and your ex will know the real reason for the end of the marriage or civil partnership.
Also bear in mind that if you name “the other party” in adultery, they will also need to receive a copy of the divorce petition – this is a legal requirement. Normally, family lawyers will advise not to name the other party as it can cause added complications.
As with all divorce matters, it is best to get some expert advice and with adultery, you may decide to use unreasonable behaviour in the end.
The applicant has to show that the respondent has behaved in such an unreasonable way that they cannot be expected to live with that person anymore. The divorce petition must include examples of the unreasonable behaviour and they can be serious or mild allegations. As the allegations of behaviour normally don’t end up affecting the outcome of children’s issues or financial issues, it can be better to try and be as “soft” as you can and get the divorce over and done with as painlessly as possible.
At the end of the day, regardless of what is written in divorce paperwork, both parties know in depth what really happened. Ask yourself if you really need to have further acrimony. Speaking to a divorce coach or counsellor can help you to come to terms with feelings of anger or revenge which are sometimes the reason why a couple want to cite everything in divorce papers. In many cases, a draft petition will be sent to the respondent to give them the chance to defend matters. You can find Divorce Coaches in The Hug Directory.
This reason is rarely used as the petitioner has to show that the respondent has deserted them for a continuous period of at least two years. Usually one of the other facts applies and is easier.
Two years separation by consent
This is applicable when a couple have been separated for at least two years. However, a divorce can only be granted if the respondent consents to the divorce. If you don’t have any contact with your ex, then you may have to move to the next point, which is five years separation without consent, if you can’t prove desertion.
Five years separation without consent
If a couple have been separated for at least five years, a divorce can be granted without the respondents consent. It is a myth that you can simply get divorced after 5 years without the knowledge of the other party and this can be a very tricky situation as after 5 years, it can be very easy to have completely lost touch with an ex and you will find yourself proving to the court that you have done your utmost to find your spouse including searching on social media etc. Even if you have been separated for 15+years, the same applies. You cannot just divorce without the other party.
Petitioner or Respondent?
The petitioner or applicant is the person who starts the court case by filing the divorce petition. The other spouse is called the respondent because when they have received the initial paperwork/petition, they can respond. This is called the “response”.
Can you get financial help to divorce or dissolve a civil partnership?
If you have, or are still suffering from domestic abuse, start to keep a diary of what has happened and when. Visit your GP to record any physical injuries and to discuss your emotional well-being. Take photographs of any injuries and record your feelings in a diary which you keep extremely safe from your partner.
Can you receive Legal Aid for your break-up?
You may be entitled to Legal Aid for your divorce or dissolution of your civil partnership. You will need to find a lawyer who takes on Legal Aid clients, as not all family lawyers do. Take advice from legal professionals and domestic abuse charities; keep yourself and your family safe in this situation. Take a look in our resources area for Domestic Abuse Charities.
Speak to your GP and don’t be afraid to contact the police for further advice. Taking advice or calling the police doesn’t start a process whereby your spouse will get wind of what’s going on. It is well recognised that domestic abuse is a very delicate matter which has to be dealt with safely.
- If you are researching these matters on the internet, don’t forget to clear your browsing history *
Collate your evidence and speak to an expert
You might be able to get legal aid if you have evidence that you or your children have been victims of domestic abuse or violence and you cannot afford to pay legal costs.
Remember that you do not have to get evidence before talking to a legal aid solicitor or Civil Legal Advice (CLA), but they’ll need to see it before deciding whether you can get legal aid. You will also need to provide evidence of your income and may need to be in receipt of some kind of benefit such as Universal Credit.
If you are receiving Jobseekers Allowance – make your advisor aware of your situation as they should be more lenient with Domestic Abuse Victims, There is help available around looking for work and housing benefit- See this guide on the government website
From Gov.UK – What counts as domestic abuse for legal aid
You or your children must have been victims of either:
– domestic abuse or violence
– financial control, for example being stopped from accessing a joint bank account, having benefits paid into your partners account, being given an “allowance”.
– You’ll usually need to show that you or your children were at risk of harm from an ex-partner.
You can ask for evidence from:
– the courts
– the police
– a multi-agency risk assessment conference (MARAC)
– social services
– a health professional, for example a doctor, nurse, midwife, psychologist or health visitor
– a refuge manager
– a domestic violence support service
– your bank, for example credit card accounts, loan documents and statements
– your employer, or education or training provider
– the provider of any benefits you’ve received
Taken from Gov.UK – Read more about this here
Take your time and try and start the wheels in motion amicably
Whatever the reasons, if you are the one instigating the break-up, don’t expect your partner to be immediately able to make decisions. If it’s a shock to them, you will need to give them time to digest the information and space to think. Having empathy will go a long way towards a more amicable separation and divorce.
Even if you feel that your spouse is at fault, trying to stay calm and reasonable and “biting your tongue” – can lead to a better outcome for you in the long run. It may help you to work with a divorce coach or counsellor to control your feelings and emotions and you can find these types of experts in The Hug Directory.
However, allowing your spouse to have some space doesn’t stop you from getting legal advice. It may be in your best interests to start setting things in place to begin proceedings and to be the applicant, issuing divorce papers before your future ex does. The family court system is quite slow, so you’re definitely not going to be divorced within a month!
If you are definitely getting a divorce what do you do next?
The first thing to do is to seek out some professional advice with regards to separating as the issues could involve the following:
- Finances (including bills and debts)
- Communicating with your ex
Which experts do you need in your divorce toolbox?
You can start off with somewhere such as the citizens advice bureau, or a family law firm or mediation company. Many of the organisations who feature in The Hug Directory offer a free initial consultation. If you contact someone who advertises on www.thegrouphug.com, mention that you found their details via The Group Hug and be upfront and enquire as to whether they can offer you some free advice.
If you feel that you will be able to have an amicable divorce, there are other ways of permanently going your separate ways with online divorce portals and one couple one lawyer firms headed up by family lawyers or barristers who want to offer couples more cost-effective divorce methods. Having knowledge for the journey you are about to embark on will empower you.
A divorce coach?
Many people engage with a Divorce Coach as a first step to help them to decide which type of professional they need. A coach can actually help you with the way you deal with your divorce and could see you handling it in such a way that you take the fire out of the situation. You could then end up with quite a simple process, gaining what you want in a less stressful way.
Whatever you decide, you can’t go into divorce blind. Not only will you be educating yourself about the process of divorce or separation, but you will also find yourself dealing with your emotions and those of others around you; your children, family and maybe even your ex. You need to know what your rights are.
It will be normal to have days where you feel tired and emotional and for many, contacting a Divorce Coach or Consultant to assist, is never a regret for what is almost always a highly emotional roller-coaster. There are many experts featured in The Hug Directory; financial advisors, house move specialists and co-parenting coaches. You may wish to have several of these experts on your team.
Don’t forget your finances
It is vital that you acknowledge what you want your future to look like and to think about financial matters such as pensions. Even if it seems like many years into the future, you should consider your retirement plans with a financial advisor. There are experts who actually specialise in helping those going through divorce or dissolution. Even if you find finances intimidating, you must take the bull by the horns and face this topic head-on. Take a look in The Hug Directory to find a specialist.
Start the ball rolling and ensure you are in control of the situation
Many people worry that seeking legal advice will anger their ex, but everything needs to move forward at some point, so it’s best to start the ball rolling; gain some clarity about what needs to happen next. Keep speaking to people, whether that be in the Group Hug Safe Community Forum or to professionals or a charity. Don’t ever feel alone, arm yourself with information.
If you or your partner has an “international element”, maybe they were born outside the jurisdiction of England or Wales or their assets are all abroad, it is really worth while “getting in first” if you want to have the proceedings overseen in a certain country. However, it is said that England and Wales offer the fairest divorce in the World. Again, seek legal advice quickly so that the ball is firmly in your court.
Do you think you can’t afford to get divorced?
Of course, not everyone can afford professional legal help with legal aid now very difficult to secure, but there are organisations such as The Citizens Advice Bureau and you can arm yourself with a good legal advice book and act for yourself as a litigant in person.
Just because you don’t have your own assets within the marriage or civil partnership, don’t think that you cannot afford to divorce. Speak to a family solicitor as it may be that the funding can be secured against a joint asset or something owned by your spouse. If you don’t ask, you will not know. In divorce it is important to explore all the options which may be available, There are also options to gain funding through litigation loans. There are law firms who specialise in high net worth cases (HNW) where there are many assets and matters are complex such as one spouse having a business or offshore accounts.
You don’t have to have a solicitor to get divorced
Being a litigant in person means that you represent yourself in court if you find your divorce going through the court process. A litigant in person doesn’t have a solicitor or barrister in court with them. Take a look at our resources page to find organisations who may be able to help. If you can mediate with your partner, this may also be a cheaper option, so contact a mediation company via The Hug Directory to get some idea about the costs involved. In general, the more amicable a couple are, the less it will cost them. Don’t forget to finalise the financial matters. The last thing you want in years to come, is for your ex spouse to “come back in”. Draw a firm line under everything including any issues you may have with child contact etc.
What is a McKenzie Friend?
You may have heard of McKenzie Friends, these are people who can accompany a litigant in person to a court hearing to assist in taking notes and help with documents. They may also be able to make quiet suggestions to you in the courtroom.
Normally a McKenzie Friend is not legally trained, and in the case of the family court they may be someone who has been through the divorce process themselves. The Judge will not allow them to get involved in the case directly, so they will not be able to speak to the judge during your case; they are there to support you in what can be a very stressful situation.
However, a McKenzie Friend can ask the court to grant him or her a right of audience allowing them to address the judge and speak in court plus examine witnesses. There are strict rules in place, so bear in mind that this might not be allowed. Some McKenzie friends work for free and others work as professionals, as their full-time work and charge a fee. It is definitely worth considering, so ask around and see if there is anyone local who comes recommended. Even if it’s just to have someone by your side on the day of a hearing. Search McKenzie Friend in The Hug Directory
The courts are used to people acting for themselves and Judges are aware of how stressful appearing in court can be. If your spouse has a solicitor or barrister, they also have to make allowances for you representing yourself. If you don’t understand something during your hearing you must ask. They have a duty of care to ensure you know what it happening.
What happens when you arrive at the court for a hearing?
Since Covid-19 struck, many court cases have been taking place via phone calls or video meetings. If your hearing is taking place in this way, you will receive full instructions about what to do on the day. Solictors are saying that there is now less “waiting around” as the calls are scheduled for a certain time meaning things are running more efficiently.
If you are attending court in person you can expect the following to happen: When you arrive at court you will start by going through security, so be ready to have your bags searched just like you would at the airport. You will even go through an airport style metal detector.
Once through this, you should ask where the “court lists” are; the security guards will normally know. You will either see your case number (the number which appears on all your court documentation), or your name on the list. If you can’t find your details don’t be afraid to ask someone for help, everyone is in the same boat and even solicitors and barristers are human, so just ask anyone.
The court usher
You will need to let the court usher know you have arrived, think of them as the check-in. Usually they are located at a desk in the main entrance as you walk in, or at a counter. It may be that the security is at the main entrance and you have to travel to another floor with the court usher located there. Give them the information from the list, which will be the court you are appearing in and your name and case. Also tell the usher that you are representing yourself as a litigant in person so the Judge knows in advance.
In some courts, the court list is held by the usher, so everything is all in one place. The main thing is not to panic. Court waiting rooms can be busy places with hardly any seating. Lawyers will be bustling around and speaking “legal” to their clients. It can all feel terribly overwhelming. Take a deep breath. You will not be the only one feeling the way you do and remember that you are not part of a criminal case, you are simply in court as part of a procedure to get divorced.
A friend to lean on
Even if they cannot go into the courtroom with you, take a trusted friend to support you in the waiting room. It can be daunting standing alone with people everywhere, wondering when you are going to “go in”, especially if your spouse is there with an entourage. It’s nice to have someone to talk to and can take the awkwardness out of the proceedings. Also, your spouse may want to enter into negotiations and you can feel under pressure if you are alone. Having someone with you can help you to make decisions which will affect the rest of your life.
The waiting game
You may have to wait a long time and just because your court letter says 10am doesn’t mean that you will not be seen until 3pm. Your spouse’s representative may come over to introduce themselves. They may also start to talk about how to settle matters, but don’t feel forced into anything. Take your time and make notes if you wish. You should always ask to think about what they have said so they leave you alone for a time. You may want to text a friend, or if you have the opportunity, make a call (check where you can make calls and when. Don’t miss your hearing!)
MAKE SURE YOUR PHONE IS SWITCHED OFF DURING THE HEARING
At some point you will be called in to see the judge. There are different ways of addressing different levels of Judges, but again, don’t get into a panic if you get it wrong.
Magistrates and District Judges – Sir or Madam
Circuit Judges and any higher judges – Your Honour
What will it be like in the courtroom?
A family courtroom can often be a normal room with a few rows of seats and tables and the judge sitting at the same level at a desk. It can feel like a classroom with a computer screen, papers and books. It could be that you find yourself in a more formal looking courtroom with the judge sitting at a higher level looking down on the room. Whatever the environment, remember you are not a criminal and you are asking the courts to sort out issues with your spouse with regards to getting divorced or dissolving your civil partnership.
The room and environment will also depend on the type of court you are in. If you are in the High Court, things will be different than if you are in a local family court.
Are there rules in the courtroom?
It is always good etiquette, (and in the case of a Circuit Judge or Higher you must do this) to stand until the judge arrives and gives you permission to be seated. Always stand before speaking unless otherwise directed and wait for permission from the judge to do anything. Be polite and don’t talk when the other side are speaking or make comments or interrupt. Don’t worry if you get emotional and cry. In this case you may be asked if you would like to step out of court for a while. The Judge may suggest that the case is postponed while everyone takes a breather to reconvene in an hour or two.
It may be that you want to accept your spouses proposals on the day and in this case you will still have to go in front of the judge. The judge will lead the way. You can’t get anything wrong and remember you are not legally trained; you are not expected to know everything about the law. Judges can seem stern and may sometimes pass comments which you do not like. Try to stay calm and remember that it will soon be over.
At a final or fact-finding hearing,you may find yourself being cross-examined. As a litigant in person this means that you would need to cross-examine the other-side or maybe a witness too. You could find yourself questioning your spouse.
Through every stage of this, you can get support from others who have been through the same experiences by chatting safely and anonymously in The Group Hug Forum
Why do I have a Barrister at Court and not my solicitor?
Many people get completely confused and worried when they realise that the solicitor they have built a relationship with is not going to be at court with them. In America, all “lawyers” are just referred to as lawyers. Here in the UK we have Barristers and Solicitors. Some people believe that Barristers are more senior than Solicitors, but that isn’t true, they are just different professionals.
Barristers are specialists in particular fields and they are trained in representing their clients in court, arguing cases, cross-examining witnesses and advising a client and their solicitor on specific aspects of their case.
The “cab rank rule”
Barristers spend a great deal of time in court and are self-employed. They cannot pick and choose cases because of the cab rank rule, which means that when a case comes along which is their field of expertise they have to take it. It is called the cab bank rule as it refers to a client coming to the cab- rank and the cab driver at the front of the queue has to take the fare. They cannot pick and choose. It is the luck of the draw.
In the family court barristers will usually be representing a client, or in children’s matters, a parent, child or local authority. Hearings could be about time spent with a child, disputes about finances and property, injunctions regarding domestic abuse, or care and adoption proceedings when the states intervenes where it believes that a child is suffering. The work is diverse and the majority of a barristers time is spent in court.
What work does a barrister do?
One day a barrister may be representing a wife to get a fair financial settlement in divorce, the next they may be trying to get contact for a father or grandparents. A lot of work in family court hearings is negotiating between a couple outside of the court room, trying to come to a solution without the need for a full final hearing where a Judge decides the outcome because the couple simply can’t sort matters out.
Don’t expect to see your family court barrister in a wig and robes, as they rarely dress in this way for this type of hearing unless there is something particularly serious happening such as a breach of an order when the court is considering sending one party to prison.
How do you find a barrister?
Usually a solicitor will instruct a barrister, although there are now some “direct access” barristers who can be instructed directly by clients just to represent them in court; the client has done their own litigation work (paperwork). A solicitor is responsible for all the litigation work for the case; the taking of initial instructions, the issue of proceedings, evidence gathering and the preparation of the case for the hearing and then, the instruction of the barrister (also known as counsel) for court.
The cost of a barrister will depend on the complexity of the case, the travel time and costs and the amount of work involved. For example, if a barrister is new to a case, they may have a lot of ground-work to cover; reading to do before being “court ready”. A solicitor will get the cost of a barrister for a client to decide whether or not they wish to go with that barrister. It can be quite tricky to instruct a particular barrister when you have been given a court date. Trying to fit matters into everyone’s diary, including your spouse’s can prove difficult and you may have to be flexible and consider several options for counsel.
You can choose your own barrister, but your solicitor will be familiar with several who they have worked with before. Most people prefer to go with a barrister their solicitor recommends as they know how they best work together, but ultimately, you are paying, so it’s your choice.
If you cannot afford a Barrister, you can apply to The Pro Bono Unit “Advocate” – Check if you are eligible here
What happens with regards to finances while going through divorce?
Unfortunately it is reasonably common that finances are the first thing to go “wrong” on the outset of divorce. It may be that one party has to move out of the family home meaning there are then more costs as a “whole” with not only the family home to run. Financial matters can also be used as a way of inflicting post separation abuse on one party during proceedings and it is not uncommon for an angry “soon to be ex” to stop paying the bills, get a joint bank account into debt or to stop paying credit card bills, all done with the intention of causing pain and emotional upset to the other party.
Do you have a joint bank account?
Divorce changes people, so it is always worthwhile exploring the possibility of freezing any joint bank accounts so that any financial movements in or out have to have the permission of both named parties. Usually, one party can have a joint bank account frozen; both parties don’t have to agree, it is enough that one party says that they would rather an account were frozen because of a change in relationship circumstances. It’s better to freeze an account than to see a partner withdraw all your savings and live with the regret of not thinking ahead; there may be nothing you can do when they have spent it!
Don’t think that you will be automatically compensated in the divorce proceedings. You could be counting the cost of a mean move from an ex, long after the Decree Absolute has been issued. Always try to be ahead of the game. If your spouse is angry that you now have to give permission to each other for every bank transaction, ask yourself why; did they plan to do something untoward? Seek legal advice, and speak to your bank before making any firm decision. You don’t want to scupper your own needs by changing the account.
Deal with any debts head-on NOW!
If you have debts, call a charity such as Stepchange to talk things through. They are really helpful and will speak to credit card companies and banks on your behalf to work out an affordable payment plan. Don’t waste money struggling at the beginning of your divorce and wasting money on interest charges which may be stopped for a time or even forever. Many people end up with financial difficulties when they start a divorce and Stepchange will listen.
Explain your situation and they will do their very best to assist you. Just remember you are not the first and won’t be the last! If you are suffering from domestic abuse, remember to tell them about this too as most financial institutions are now aware of financial or economic abuse. If you are receiving benefits and are a victim of any form of domestic abuse, check out this information from The Department of Work and Pensions about the help you can get. Find out more about the charity Surviving Economic Abuse via our resources page.
Do you want your spouse to pay for the divorce?
There will also be the costs of the divorce itself. The petitioner or issuer of the divorce petition has the option to ask the court to make an order to say that the respondent needs to pay the costs of the divorce. By “divorce” – that literally means the divorce part and not the cost of sorting out the finances and any children’s matters. The costs would be the court fees and instructed lawyers fees and you can ask for all the costs to be paid or just a contribution.
Can you apply for Maintenance Pending Suit?
If you are struggling financially, speak to a solicitor about other funding options for your divorce or dissolution. It may be that you can apply for Maintenance Pending Suit . This is a court process which orders that one spouse has to financially support the other by way of periodical payments (maintenance) to the other until the end of the divorce proceedings when a final order is put in place. Many spouses stop receiving any financial support from their partners and find themselves in dire situations. It is then down to the court to place an obligation on one spouse to support the other to cover the interim period before a final order is made.
The divorce petition; why you should tick all the boxes and decide later
With regards to the divorce petition, if you are the petitioner, make sure you tick the boxes stating that you wish to make an application for a financial order for yourself and any children. It may be that you sort matters out between yourself and your spouse, and can tell the court that matters are resolved. However, it is easier to tick the boxes now than to have to tell the court that you didn’t tick these boxes and then wish to make an application in the future.
By ticking the box you are not setting any wheels in motion, you are simply stating that there are financial matters which need to be addressed as part of the divorce. The family courts really prefer matters to be settled amicably out of court and even in court proceedings, there are many opportunities given to couples to try and “work things out”.
Do you feel that the divorce is your fault?
If you are feeling guilty for say, having an affair, this could lead you to be more generous in the finance stakes. It may be that you feel better giving your ex more than you really should, but just take your time in the heat of the moment and think about why you had the affair or are ending the relationship. Does guilt really need to play a part? It could jeopardise your future happiness. Do you need to offer your spouse what you feel is compensation?
Maybe it’s time to become what some may call “a little selfish” and think about your long-term plans away from the relationship. People move on and it is up to both parties to make the best of the situation, not necessarily for one person to compensate the other for their actions. Of course, there is reallyno excuse for adultery, but there will be a reason.
Can you annul your marriage?
There are a few reasons which you can use to anul your marriage.
- You didn’t have sexual intercourse with the person you married since the wedding, in other words, if it was not consumated.
- If you were forced into the marriage or did not properly consent to it.
- The other person had a sexually transmitted disease when you got married (an STD)
- Your spouse was pregnant by someone else when you got married.
- On the day of your marriage, your spouse was in the process of transitioning to a different gender.
Until the marriage is legally annulled, you are still married.
With annulment, you will be showing the court that the marriage or civil partnership was either never legally valid or was valid but one of the reasons above makes it voidable.
The marriage was never valid if one or both of you were under 16, if one of you was already married or in a civil partnership or you were closely related to the person you married or in a registered civil partnership with.
You can apply to annul your marriage immediately after getting married and up to three years after. A court may make some financial orders even within an annulment of a marriage.
What can you do if you’ve lost touch with your ex after 5 years?
If you have lost touch with your ex, you have to show the court that you have given them the opportunity to respond to the divorce petition regardless of how long you have been separated; be that 5, 10 or 15+ years; the amount of time is irrelevant.
Proving to the court that you have tried to locate your spouse could mean providing evidence of using different means such as social media, family, friends and national records. There are three valid options available to you if you don’t have an address.
- You can apply for a court order against a government department to release the address of your spouse if they are believed to be residing in the UK.
- Apply to dispense with service if your spouse lives abroad, in other words, ask to not have to serve your ex. You must still prove that you have tried to locate your soon to be ex.
- If you still know the address of a close friend or relative, you can ask the court if the divorce papers can be served on your spouse via this other person.
What happens with the financial side of things after 5 years?
Even after five years, financial matters need to be addressed. You should therefore consider dealing with this side of things at the same time as your divorce. Receiving your decree absolute doesn’t cut the financial ties between spouses as financial resolution is a separate issue. You can apply to the court to make a financial order if you don’t have an address for your ex-partner or if there is no agreement.
You could find yourself attending court hearings to discuss the finances because that’s the only way to divide any assets and money. Getting a financial order will stop any future and further claims on finances between you and prevent any future shocks. Just imagine if you didn’t sort financial matters out and in the future you find that your ex suddenly has a claim on your assets.
If you are in touch with your spouse and you have agreed on a financial settlement you can simply apply to the court to make the arrangement legally binding. With finances being such an important part of life, it is worth taking professional advice to ensure that you are making the correct decisions.
What happens after five years separation and your spouse agrees to divorce?
If you find your spouse and they agree to get divorced, then your life just got a whole lot easier! Everything should move fairly quickly and cost you much less. The divorce will proceed in the same way as if the reason was any of the other grounds for divorce. If everything runs smoothly there should be no reason why you are not divorced within 6 to 8 months. Again, you must sort out a financial settlement and get this legally signed off to avoid any future come-back.
What do you do if your ex-partner won’t co-operate?
Firstly, you have to prove to the court that your spouse has been served the divorce papers. To do this you can ask the court to personally serve the papers, or hire a private server. This is a normal process so don’t be worried about this. It is very easy to set-up and much like sending a recorded letter, but more official. Usually hiring a private server is quicker than asking the court to do it. When your spouse has been served, you can then prove that this has happened. The next step includes issuing a statement of service along with your decree nisi application.
Contesting a divorce
It is fairly unheard of that a spouse contests or defends a divorce, but it can happen. There is a procedure to follow and a divorce lawyer will need to go through this with you as additional paperwork needs to be filed with the court. In general, the process will take a lot longer than if it is agreed by both parties. Contested divorces generally cost more and there is no guarantee as to the outcome.
Sometimes a divorce is contested simply because of the matters claimed in the divorce petition. In this case, either yourself (if you are contesting the divorce), or your spouse can make it clear that while you do not accept or admit to the allegations, you do accept that the marriage has broken down. You can then move forward. In a contested case, communicating with the other party will be the key to proceeding. Some people refer to getting a divorce or dissolution as similar to playing a board game; you can’t pass certain points until you have carried out certain tasks.
Does it matter what is written on the divorce petition?
An important fact to remember, and one that may make a huge difference to whether or not a divorce is defended or contested is that divorce petitions are NOT public records – they are not available online and no one, only you, your spouse, your legal team and the courts will have sight of what is said. Your children do not have access to this legal document unless you or your partner allows that to happen.
However, the divorce petition would need to be sent to a person who has been named as part of a petition using adultery as the grounds for the divorce. In most cases the “third party” would be “unnamed” as it can lead to complications in the case if they choose not to respond, causing delays.
Understanding that the petition isn’t going to be seen by others can lead a spouse to change their mind about defending the divorce and to just crack on with matters. The Divorce Absolute will eventually be the only paperwork required to prove your marital status and this does not state why you divorced or the journey you took to get the document.
What happens if your husband or wife lacks mental capacity
If your husband or wife “lacks mental capacity” and cannot agree to a divorce or take part in the divorce case you can still apply for a divorce. However, your spouse will need someone to make decisions on their behalf and this person is called a litigation friend; a family member or close friend can act on their behalf.
If your spouse doesn’t have anyone to represent them then you can ask the court to appoint someone suitable. The official solicitor may agree to act as your husband or wife’s litigation friend when there is no one else who can do this, but in most cases there is someone suitable who can act. You will obviously need to give details of your spouses medical professional to certify their incapacity.
What is a Decree Nisi?
The Nisi is usually described as the first divorce order but it does not officially end the marriage. It confirms that a person who is seeking to divorce is entitled to bring the marriage to an end and clarifies that all the legal reasons to end the marriage are in order and things can proceed. Think of it like the first step towards finalising the divorce. You need to wait at least 43 days (6 weeks and 1 day) after the date of the Decree Nisi before you can apply for the Decree Absolute.
What is a Decree Absolute?
When the Decree Absolute is issued this is the point when the marriage is finally fully over and you are divorced and no longer married. It is not until this has been issued that you can remarry if you wish. If you need to apply for your absolute yourself, you can do it here on the UK Government Portal You must apply for it within 12 months of receiving your nisi or you will have to explain to the court why you delayed asking for it. The respondent can apply for the Decree Absolute three months after the Nisi has been issued if the petitioner fails to do so.
Do you see yourself as a common-law husband or wife?
Firstly, there is no such thing as a common-law husband or wife. Just because you might have lived as a married couple for years, doesn’t mean that you have the same rights as a couple who are actually legally married or who entered into a legal civil partnership, in this case you have a “spouse”.
You are a cohabitee if you live with, or used to live with your partner and have never formally married or entered into a civil partnership. You don’t have any real legal rights but it is worth taking initial advice from a family lawyer or citizens advice just to make sure where you stand legally. This is especially important if you have children or have purchased a property together.
Did you marry abroad?
If you married or became civil partners abroad, seek legal advice to see where you stand. If you have been separated from your spouse, even years ago but have not formalised that separation legally, then you are still deemed to be married or in a civil partnership. Even if you feel that the children and/or finances are all sorted, you are not divorced or legally separated until you go through the legal process. It is really important that you get a final order for finances so there is no future come-back.
What is the “No Order Principle” in children’s matters in court?
If you and your spouse cannot agree on matters for the children such as where they should live, which school they should attend, how much contact one parent should have, it may be that an application to the court has to be made. In such matters, the court is guided by the provisions and principles of the Children’s Act 1989.
The court must not make an order unless it believes that doing so will be in the best interests of the child, more so than making no order at all. There is policy that the court will not intervene unless it believes that its in the child’s best interests to do so. Of course, the Judge’s mind is always considering the welfare of the child. The no order principle is in place to try and discourage unnecessary orders being made and to try and get parents cooperating and negotiating between themselves, for the sake of their children.
Is there even a slight chance that you could work things out?
However, if you feel that there may be even a slight chance of working things out, you may decide to try a temporary separation.
Can you be amicable?
Not every divorce ends up in the family court and there are many ways in which people can divorce. Some couples can be amicable and get through the divorce or dissolution using a simple process such as an online divorce solution or one couple one lawyer or mediation. Do always check that you are getting what you want and what you are due.
Never rush matters and chat to others to ensure that you are not losing out. Everyone should always think about their future and consider where they want to be in their retirement, so a chat with a financial advisor is always worthwhile. Talking to experts can set your mind in motion to consider everything that a divorce or dissolution entails, so don’t be afraid to gain as much knowledge as you can. There are experts in all fields including Financial Advisors in The Hug Directory.
Can you achieve a divorce or dissolution without going to court?
If you are going through the court process for your divorce, you will normally have to prove that you’ve been to a Mediation Information and Assessment Meeting (MIAM). This meeting is an introductory meeting to explain how mediation might help you through the divorce or dissolution process. If your spouse won’t attend, you should call the mediator and explain the situation. You cannot force someone to attend a MIAM before court proceedings commence.
Mediation is a way of trying to work through your issues and sort out matters with your spouse with a third party (a mediator) who will not take sides. The process can enable you to come to an agreement about finances and money, children and property.
Do you have to try mediation?
If you have experienced domestic abuse you may be exempt from this process. The courts don’t look very favourably on those who do not attend a MIAM without good excuse. It’s fair to say that they believe that you should at least consider mediation.
If you see a solicitor before trying mediation they will probably discuss whether using mediation first could really help. The benefit of being able to mediate your way through your divorce is that it will cost less money and save time. It may be useful to see someone who can give you legal advice entering into mediation to see work out where the land lies and to ensure that you have realistic targets for mediation.
It can also be less stressful if you can negotiate, but as we always say at The Group Hug, ensure you know what you should be entitled to. A mediator cannot give legal advice but they will listen to both points of view and they are also trained to keep things calm. They are able to make suggestions for you both to consider and spark conversations between you and your spouse.
You have to be prepared to give and take
Before you start mediation, it is important to think about what you want and to have a plan in your mind. You should also think about how you can be reasonable and be prepared to “negotiate” on certain points. You cannot expect your ex to be the only one “giving-in”. Think about the most important issues to you and let go of the small things. Is it really going to be detrimental to your future happiness if you allow your ex to have the dinner service?
Get your ducks in a row
As you would with court proceedings, you will need to complete a financial disclosure so you must have information about your income, be that from work or benefits, your expenses and living costs for things such as bills, food, car, school fees. You must show how much you have in your bank account and disclose any debts. Also make sure you can give information about any properties, businesses or other assets you own. The key is to be honest because if you are not, and in the future your former spouse finds out, you could see yourself in court.
During the mediation you will sit together and have discussions. However, in some cases this is not possible because of acrimony. Sometimes a couple will sit in separate rooms and the mediator will move between rooms to speak to the couple. In this case, the process of mediation will be more expensive.
You may be able to get Legal Aid for mediation, so if you receive benefits or are on a low income, do check if you qualify.
What can you do if your ex has always been controlling?
When you have an ex who has been abusive or controlling, it is worth speaking to the mediation company to explain. It could be that they can offer you two mediators during your sessions. It’s worth considering the options before dismissing mediation completely. It’s strange how a person, even a dominating one, can change when there is a authoritative third party in the room. You may find that your usually overwhelming ex turns into a push-over in mediation.
If one party has had an affair, this can lead to feelings of guilt, and again, the mediation process may be simple as they seek to relieve their guilt by agreeing to much of what the other party wants.
Your mediation has gone well, so what happens next?
If you’re successful in achieving what you both want in mediation sessions, your mediator will write a “memorandum of understanding” which spells out what has been agreed. If the memorandum is about money or property then it’s a good idea to get this turned into a consent order so you can take your ex to court should they not do what they promised. A consent order can be applied for after divorce proceedings have started. It gets approved by a judge in court.
What is the option if mediation falls flat?
If you haven’t been able to agree matters in mediation there are two other ways of trying to resolve matters out of court.
This is a session or meeting between you and your ex and your respective solicitors who would be specially trained in collaborative law. You all meet together in the same room to try and work things out and come to an agreement. Everyone needs to pay their own solicitors fees and the cost will depend on how long it takes to come to an agreement. Before you start such a session you both have to sign a contract to say that you will try and come to an agreement.
What happens if it doesn’t work?
If you know that your ex is stuck in their ways there is probably no point in trying this. If you do try and it doesn’t work you will need to head to court and you cannot use the same solicitor. You will need to find a new one. However, if you can reach an agreement, then a consent order will be drafted and and this is legally binding.
This is a bit like going to court but an arbitrator makes the decision based on your circumstances, rather than a judge. You and your ex choose an arbitrator jointly and you can also choose where you want the arbitration to take place. An arbitrators decision is legally binding.
Arbitration is usually cheaper than going to court and much quicker than waiting for a date for a court hearing. It’s always a good idea to speak to a solicitor before going to arbitration.
If you can find common ground with your spouse, you could enter into negotiations around children’s matters and finances. You may be able to talk to each other directly or through trusted friends or members of your family. However, do ensure you know your legal rights and don’t be pushed into anything which you may regret in the future.
For example, you may feel that you don’t need money right now, but what does the future hold? How do you want your retirement to look? Will you have enough money to find a place for your children to stay over? There are many things to take into consideration. It is really worthwhile getting some legal advice at the very start of your negotiations because if things don’t pan out, you could see the matters you discussed coming out in court and prejudicing your case.
Consider using a solicitor to negotiate?
You can of course instruct a family solicitor to do all the negotiations on your behalf. Using a lawyer doesn’t mean that the case ends up in court and many people get divorced in this way, without ever stepping into a courtroom. Your solicitor can correspond directly with your spouse or through their representative, if they have one.
Instructing a solicitor will mean that you have someone on your side who knows the law and is working in your best interests. They will also be able to explain to you what is happening and present any legal arguments to support your case. Having a legal professional supporting you can really take the weight off your shoulders as you will know that your case is being dealt with efficiently.
Dealing with negotiations yourself can become tricky when your spouse has one opinion on a point of law and you have another. Matters can go downhill very quickly leaving everyone involved exhausted and not knowing which way to turn. If too many people get involved, this can add confusion. Everyone always has their own opinion on what needs to happen in your divorce.
Things have changed in the divorce arena over the years and getting advice from someone who divorced a number of years ago, is also unhelpful. There are many myths such as “If you don’t see the children, you don’t have to pay maintenance for them” and “I can keep that asset to myself as I inherited it”.
Cruel to be kind
If you want a divorce and your spouse doesn’t, things can go on and on for months or even years. In this case, maybe it’s kinder in the long run to instruct a solicitor to get things moving. This will mean that eventually you can both move on with your lives, even if that isn’t what your spouse wants right now. Sometimes it takes for a reluctant spouse to receive a letter before it sinks in that divorce is really happening.
Negotiations can take place when they are forced to come to terms with the fact that there the relationship cannot be resurrected. You may have to be cruel to be kind. There are many family solicitors in The Hug Directory. Take a look at their profiles and maybe have an initial chat about your particular circumstances.
What happens if you end up in court proceedings?
Sometimes there is no negotation or mediation to be had culminating in matters ending up in court. Throughout the court process there will be many opportunities to reach an agreement before heading to the next “base” or hearing.
You must understand that going to court doesn’t mean that you simply go to one hearing and the Judge decides the outcome. A process starts, a series of hearings, which, if you don’t come to an agreement throughout the process, will see you in a very expensive Final Hearing. It is definitely worth finding out how much everything will cost if you do end up at this point. In general, solicitors will say that a final hearing, at the very minimum will cost £15,000. If you are starting the process, you need to know that you have the funding or willpower, if you are acting as a Litigant in Person, to get through to the end if need be.
It might be worth starting court proceedings while negotiating
Some couples run negotiations alongside the court process. This means that the wheels are in motion should they need to go to court to reach a resolution, especially where one partner doesn’t believe that their spouse will ever come to an agreement. It can be worthwhile starting the court application process, as the time between hearings can be long and drawn out. The threat of going to court can also entice some spouses to “get with the programme” and face matters.
Applications and forms
To start the court process either you or your spouse will have to make an application to the court and this could be through a family solicitor or, if you are a Litigant in Person, you may be applying yourself. There are specific forms, depending on what you want to do. All of the forms are available on the Government portal. You will see from the list of forms that there are separate ones to start children’s proceedings and for sorting out your finances. The court could be dealing with three matters for a couple. The divorce itself, the finances and the children.
When you make an application to the court, the other party receives a copy of the form too. Your spouse will know what you’ve said and what you are applying for. You are applying to the court for the Judge to make an “order”. The other side gets the opportunity to reply to what you have said and to give their views to the judge ahead of the hearing. Again, it will be the process of completing a form and submitting it to the court as the respondent.
At some point, and this can take quite a long time, you will receive a date for your first hearing. You have to attend hearings unless you have a very good reason not to. A good reason would be something like being unwell (you would also be required to give medical evidence from a doctor), or being abroad. You have to attend court hearings regardless of whether you have legal representation or not.
The road you take to get that court order is up to your and your spouse
And so the process begins… and throughout the journey you can come to an agreement at any time and end the case. You are only in the court process because you are unable to come to an agreement. You’re not in a court case against The Crown as in a criminal case. You are in a civil dispute and if you can clear things up and come to a settlement with the other person, there is no reason for a Judge to decide.
Thankfully, not many cases end up at a final hearing as couples generally find a way to settle, resulting in a consent order being sent to the court for the Judge to sign off and an order being made.