Divorce

You can’t apply for a divorce until you’ve been married for at least one year. There are no exceptions to this rule. To get divorced the marriage must be recognised as valid by United Kingdom law and you must meet rules about how long you’ve been living in the country.

If you and your partner both agree to the divorce, this is called an undefended divorce. If one of you doesn’t agree to the divorce, this is called a defended divorce.

Undefended divorce

An undefended divorce is dealt with in the Family Court. You can find details of your local Family Court on the GOV.UK website at www.gov.uk.

In an undefended divorce, you don’t usually need to use a solicitor for the divorce procedure itself. However, it may be advisable to go to a solicitor for general advice before you apply for a divorce. A solicitor can be useful for advice on whether there are sufficient grounds, which grounds are appropriate and what evidence may be needed. If domestic violence is involved or if there are disputes about children, property or money which you and your partner can’t resolve, it’s usually advisable to consult a solicitor. If domestic violence is involved, you might get legal aid to pay for a solicitor.

Defended divorce

A defended divorce is dealt with in the Family Court. In a defended divorce, both partners should always consult a solicitor. When the case is heard, you will usually need to use a barrister as well. Legal fees can be very high if there are long disputes. It is advisable wherever possible for both partners to try to come to an agreement before going to court.

What do you have to prove to get a divorce

The court will grant a divorce if you or your partner can show that the marriage has permanently broken down. Legally, this is called an irretrievable breakdown of the marriage. For a marriage to have irretrievably broken down, one of the following things must be proved:

  1. Adultery
  2. Unreasonable Behaviour
  3. Desertion
  4. You have lived apart for more than two years
  5. You have lived apart for at least five years

Applying for a divorce

The partner who is applying for the divorce is called the Petitioner. The other partner is the Respondent.

If you want to start divorce proceedings you will need to get the forms from the court. You can also get them from the Ministry of Justice website at www.justice.gov.uk.

The court office will tell you which forms you need, but court staff are not allowed to give legal advice to either partner or help you fill in the forms.

What the court will do

If you both agree to the divorce

If you both agree to the divorce, the court will look at the petition and grant an order called a decree nisi. No court hearing is needed.

Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a final order called a decree absolute. This confirms the divorce. After a decree absolute has been made, either partner can marry again or enter into a civil partnership.

If one of you doesn’t agree to the divorce

If you start divorce proceedings and your partner doesn’t agree, they will have to fill in court papers called an Answer. They have to say why they don’t agree that the marriage has broken down. There might be a court hearing for a judge to decide whether the marriage has broken down. These hearings are very rare, as in most cases a defended divorce will be resolved before a court hearing.

If the court agrees to grant the divorce, they will grant a decree nisi. Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a decree absolute. This confirms the divorce. After a decree absolute has been made, either partner can marry again or enter into a civil partnership.

Help with the legal costs of a divorce

You can’t get legal aid for divorce unless you’re a victim of domestic violence or abuse. Domestic violence or abuse covers psychological, physical, sexual, financial or emotional abuse.

You can get legal aid:

  1. If you’re a victim of domestic violence and need advice on family matters such as divorce, financial disputes or disputes about children; and hence
  2. For family mediation.

Children at the end of a marriage

Once the marriage ends, you’ll have to decide who will look after the children.

You may be able to make arrangements between yourselves about where the children live and contact with the other parent. However, if this is not possible, the court can make the decisions for you.

You could get help from a mediator to make arrangements about the children. If you can’t agree about the children and you need to apply for a court order, in most cases the court will expect you to arrange a meeting with a family mediator before it will consider your application.

What orders can a court make about children

A court will only make an order concerning children if it feels it is in the best interests of the children to do so. This is called a Child Arrangements Order. A child arrangements order sets out the arrangements about who a child should live with, spend time with and have other types of contact with and when these arrangements should take place. The child arrangements order is one order which replaces the previous residence and contact orders.

The child arrangements order may include activity conditions, for example, attendance at a parenting programme. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.

Financial arrangements at the end of a marriage

At the end of a marriage, both parents are responsible for supporting the children financially, regardless of where the children will live.

You can also apply for financial support (maintenance) from your partner. You can do this whether you have children or not. There are three possible ways to arrange financial support:

  1. by agreement (called a family-based arrangement)
  2. through the Child Maintenance Service (CMS)
  3. through the Courts.

Agreeing on financial support

If you both agree to financial support, this is called a voluntary agreement or family-based arrangement. It can be written down or it could be a verbal agreement.

You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children’s clothing and holidays.

If you need advice on the options available for arranging child maintenance and for advice on how to set up a voluntary child maintenance agreement, you can contact the Child Maintenance Options Service at www.cmoptions.org.

The Child Maintenance Options Service can help you:

  1. understand the options for making a child maintenance arrangement
  2. check that any existing arrangement is right for you and your child
  3. estimate how much child maintenance you would pay or get
  4. refer you to other organisations for help and advice.

Child Maintenance Service (CMS)

If your marriage has ended and the children are living with you, you can use the Child Maintenance Service (CMS) to get financial support for your children. However, you don’t have to use the CMS if you don’t want to.

The CMS is the government child maintenance service that arranges maintenance for children under the 2012 Scheme.

Court orders

You can apply for a court order for financial support at the end of a marriage. If you do, in most cases the court will expect you to arrange a meeting with a family mediator first before it will consider your application. The court will consider all financial circumstances of both partners, including pension arrangements. In some circumstances, the court can also make an order for financial support for the children.

A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.

You might get help with legal costs when you apply to the court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called the statutory charge. Make sure your solicitor explains the statutory charge properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.

Property and possessions

When a marriage breaks down, all property owned by you and your partner will be taken into account by the court when arriving at a financial settlement. This will include any property owned individually by yourself or your partner either before or during the marriage. If either of you attempts to hide your ownership of property or possessions, you are likely to be penalised by the court.

It can be difficult to establish ownership of household possessions acquired during the marriage. If one partner gave a present to the other and this intention was clear, the gift belongs to the person it was given to.

Wedding presents are considered to belong to the partner whose friend or relative gave them unless you and your partner agreed on something different.

You will also need to sort out ownership of possessions bought jointly or bought by one partner for joint use. If you cannot agree on this, you will need to go to court, although this is likely to be the least successful way of resolving the problem. Generally, the partner with whom the children live will be expected to keep domestic goods and equipment.

Housing rights at the end of a marriage

Both married partners have the right to live in the matrimonial home and neither of you can make the other one leave. This is the case regardless of whether both of you or only one of you, own or rent the home. This applies unless a court has ordered otherwise.

If your marriage breaks down, the court can help you or your partner to enforce short-term rights to the home. These are called home rights and can include:

  1. the right to stay in your home
  2. the right for you to move back in if you left
  3. in certain circumstances, the right to stop your partner from coming into the home.

If your partner has been violent to you, you might need help to make sure you are safe in your home or have a safe place to stay.

The court can also make long-term arrangements about housing. If there’s a disagreement about housing, the court can deal with the disagreement alongside the divorce proceedings. If you cannot agree and you need to apply for a court order about housing, in most cases the court will expect you to arrange a meeting with a family mediator first, before it will consider your application.

Family mediation

What is family mediation?

Family mediation is a way of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children. To use mediation, you both have to be willing to go along voluntarily. You can refer yourself or be referred by a solicitor or adviser. If you are involved in court proceedings, the court may refer you to mediation, or if there are children involved, to a CAFCASS officer.

An independent trained mediator meets you both (this can be separately or together) to understand the issues between you and help you reach an agreement. At the end of the mediation process, the mediator will write up the proposed agreement and check that both parties understand what this would mean for them. You may wish to get legal advice from a solicitor. For example, if you want the mediated agreement to be turned into a legally binding agreement.

What are the benefits of family mediation?

The benefits of mediation are:

  1. it gives couples a greater say in what happens
  2. it’s less stressful and involves less conflict than going to court
  3. it improves communication between couples
  4. it is quicker and cheaper than court action
  5. agreements can be changed when circumstances change
  6. it considers the needs of children above the feelings of the parties
  7. it is less upsetting for children involved and helps them continue important family relationships.

When to use family mediation

A couple can use family mediation services as soon as they have decided their relationship is ending and they feel able to discuss any disputes. Mediation can be helpful before legal proceedings begin, to encourage co-operation between the couple and to prevent disputes from getting worse and agreement becoming harder to reach in the future. Family mediation can also be used after a separation or divorce if new issues arise or there are outstanding issues to be resolved.

If you want to apply to the court for an order to settle a disagreement about the children, money or property, in most cases you will be expected to contact a mediator and arrange a Mediation Information and Assessment Meeting, to see if you can resolve the dispute without going to court. The meeting can take place jointly or separately. There will be some situations where you will not need to attend a meeting, for example, where the police are investigating domestic violence.

Paying for mediation

You may be able to apply for legal aid to get financial help with the costs of family mediation. If you cannot get legal aid, you will have to pay privately for it. You should ask the mediator for a breakdown of their charges as these may vary. You should ask about the options and shop around.

You can receive a free mediation session if one of you is getting legal aid.

Court-based dispute resolution

If you ask a court to make decisions about arrangements for your children at the end of your marriage, they will usually ask a CAFCASS officer to get involved.

CAFCASS officers work for the Children and Family Court Advisory and Support Service (CAFCASS) (or CAFCASS Cymru). They are independent of the courts and other agencies such as social services, education and health authorities. They are qualified in social work and experienced in working with children and families.

The CAFCASS officer will try and help you and your partner work out the best possible arrangements for your children.

Sometimes the court will ask you and your partner, and any other parents involved, to meet with the CAFCASS officer to see if you can sort things out without having to go on with the court case. If you can come to an agreement at this stage, the judge can make an order to confirm what was agreed.

If you can’t come to an agreement, the judge can order that a report is produced before the case goes any further.

What is the CAFCASS process?

The best information on this is on the CAFCASS website – click here for more information.