Divorce – Frequently Asked Questions

How long do we need to have been married?

Do I have to name the other man/woman on an Adultery Petition?

Do I have to go to Court?

What does the term ‘Ancillary Relief’ mean?

What are the Court’s powers?

What is a Secured Provision Order?

Maintenance, lump sum payment and property transfer Court orders

Does length of marriage affect the divorce?

Is health an issue?

How do we reach a settlement?

Do I need Mediation?

Do we have to involve the Court?

What happens if I don’t comply with Protocol?

Is the agreement we reach binding?

I am living with a new partner. Do I have to declare their earnings?

Can you afford a divorce?

What is a Judicial Separation?

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How long do we need to have been married?

You need to be married for at least 12 months before you can divorce. We can help you organise your paperwork in advance, so that when you reach the 12 month stage, you are well prepared to start divorce proceedings.

Do I have to name the other man/woman on an Adultery Petition?

Yes, it is possible to name the third party on the Divorce Petition, but we normally advise against this, as it often causes resentment and increases friction between the parties. You may be able to recuperate costs from the third party to pay for the divorce although claiming costs from your spouse is usually more appropriate. Often if you agree not to name the third party then the divorce is not defended and your spouse may even agree to pay your solicitors’ fee for the divorce process.

Do I have to go to Court?

Only if the matter is defended by your spouse – ie. they refute the allegations made in the Divorce Petition and they ask the court to stop the divorce proceedings.

Not many divorces are defended because:

(a) the production of a divorce petition is a clear indication that the marriage has broken down and
(b) it can cost a lot of money to defend the divorce with no clear advantage to be gained in the long run.

What does the term ‘Ancillary Relief’ mean?

‘Ancillary relief’ is the term given to any financial agreement or settlement between parties to a divorce and can include Secured Provision Orders, Property Adjustment Orders or Periodic Payment Orders (more below).

What are the Court’s powers?

Under Section 23 of the Matrimonial Causes Act 1973, the Court has wide powers to redistribute property between spouses and rule on the provision of ongoing financial support.

Notably, the Court can impose the following:

  • Property Adjustment Order – this requires one party to transfer all/part of an interest in a property to the other party.
  • Lump Sum Order – this provides that one party must pay the other a fixed sum of money.
  • Periodic Payments Order – this provides that one spouse must pay the other a specified sum of money each month/week, or as appropriate.
  • Secured Provision Order – this is similar to maintenance, but it is secured against an asset (such as the former matrimonial home).
  • Pension Sharing Order – this provides for a specified percentage of the ‘cash equivalent transfer value’ (‘CETV’) of a pension to be transferred to from one party to another.
  • Pension Attachment Order – the Court can make an Order directing Pension Trustees to pay a percentage of the lump sum or pension on maturity to the person named in the Order.

It is important to note that a Pension Attachment Order will end if the pension holder dies. Furthermore, the income payment will end if the recipient remarries.

Secured Provision Order

If you are concerned that your former spouse will not make maintenance payments as ordered, it may be possible to apply for a secured provision order. This means that if the maintenance is not paid in accordance with the terms of the maintenance ( periodical payments ) order, you can call for the payments to come from an asset belonging to the payer e.g a rental property, shares or investments or a trust from which they may receive an income.

Secured provision orders are useful in cases where there is a likelihood that the maintenance will not be paid but there must be appropriate assets available on which to grant security. For this reason, they are not found in the majority of divorce cases. More information about Secured Provision Order

Maintenance, lump sum payment and property transfer Court orders

In deciding the order to make, the Court will take into account many factors, including;

  • The welfare of any minor child of the family.
  • The age of each party and the duration of the marriage.
  • The financial needs, obligations and future responsibilities of each party to the marriage.
  • The income and earning capacity, property and other financial resources of each party.
  • Contributions of either party to the welfare of the family.
  • Any physical or mental disability of either party to the marriage.
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The conduct of each person, but only if it is so bad it would be unfair to ignore it.
  • Any serious disadvantage to either person which may be caused by ending the marriage.
  • Whether the case is an appropriate one for a ‘clean break’.

The above points are known as the ‘Section 25 Considerations’.

Is the situation any different in the case of a short/long marriage?

As a result of the House of Lord’s decision in the case of White v White [2001] 1 AC 596, the starting position for the division of assets is an equal division in cases of a long marriage. The House of Lords highlighted that the Courts should consider the division of assets against a ‘yardstick of equality’.

In the recent case of Charman v Charman [2007] EWCA Civ 503, the Court confirmed that the starting point in calculating the division of assets in long marriage cases is equality between the parties. The Section 25 factors (see above) are then considered, which may alter the final calculation.

In practice, this has resulted in an equal division being used as a starting point, before the Section 25 considerations are subsequently applied.

If there has been a short marriage (usually less than 5 years) and no children are involved, it is unlikely that an equal division of assets will be ordered by the Court, especially if one spouse brought substantially more assets to the marriage. In this instance, normally assets acquired prior to the marriage will be retained, or returned to the spouse who originally had them, and assets accumulated during the marriage will be divided on an equal basis when the parties divorce.

Is health an issue?

The Court can take into account any physical or mental disability of either party of the marriage. If you do consider your health to be a significant issue, it may be necessary to obtain a medical report or other suitable evidence, confirming the nature and extent of your condition and setting out a diagnosis and prognosis.

Is there an agreed way of going about trying to reach a settlement?

In his final Access to Justice Report of July 1996, Lord Woolf recommended the development of pre-action protocols:

to build on and increase the benefits of early but well informed settlement which genuinely satisfy both parties to dispute

Following from this, in April 2000, the Lord Chancellor’s Ancillary Relief Advisory Group agreed a ‘Pre Action Protocol’ in relation to Ancillary Relief.

The aim of this Protocol is to ensure that parties resolve their differences quickly and fairly, and should this not be possible by negotiation, to assist the Court to do so.

The Protocol recommends the following key points:

Mediation

Solicitors are asked to consider whether mediation would be appropriate and are required to keep under review whether it would be suitable to suggest this route to clients as an alternative to solicitor negotiation/court proceedings.

More information on Family Mediation

Identifying the issues

Parties must seek to identify the issues between them as soon as possible. In order to establish what the relevant issues are, full and frank disclosure is required.

Disclosure

The Protocol highlights the obligation for parties to make full and frank disclosure of all material facts, documents and other information relevant to the issues.

If parties carry out voluntary disclosure before issuing court proceedings, they should exchange schedules of assets, income, liabilities and other material facts, using what is known as a ‘Form E’.

As the duty of disclosure is an ongoing obligation, it includes the duty to disclose any material changes (for example, inheritance) after initial disclosure has been given.

Correspondence

Correspondence should be relevant and should focus on the identification of issues.

Using experts

Expert valuation evidence is only necessary if the parties cannot agree or do not know the value of a significant asset.

Do we have to involve the Court?

In the majority of cases, the parties will reach a mutual agreement between themselves without having to take the matter to Court for a contested hearing. Their solicitors can record such an agreement in the vast majority of cases by way of a Consent Order. The Court must approve this agreement, however, it does not have to involve itself in the actual settlement decision making process.

It must be noted that even if an application has been made to the court, the parties are able to settle at any point during the court process.

More about Collaborative Law – solving family disputes without unnecessary conflict.

What happens if I don’t comply with Protocol?

If full and frank disclosure is not provided from the outset, either party is free to make an application to the Court to seek further directions for disclosure (by way of a Form A). If necessary, the Court can make a judgement as to the division of assets by holding a ‘final hearing’. It is advisable to avoid Court involvement where possible, as significant legal costs can be incurred.

If a party fails to comply with Protocol disclosure and the matter subsequently goes to Court, the Court are able to impose adverse cost penalties as a result of a party’s failure to act reasonably.

How can we be sure that the agreement we reach is binding and cannot be varied at a later date?

It is advisable to seek legal advice in relation to Divorce and Ancillary Relief so that:
a) you are fully aware of and compliant with Protocol disclosure
b) you can obtain guidance as to the reasonableness or otherwise of any proposed settlement.
c) Any written settlement can be recorded in the correct manner (namely by Consent Order), using the correct phraseology, preventing possible ambiguity (and any possible future claim).

I am living with a new partner. Do I have to declare their earnings?

The Protocol Form E does require you to indicate whether you are cohabiting, or intend to do so within the next six months. It is likely that the other party’s solicitors will ask for further information in this respect. In any event, the Court will require some further details at a later stage, as it is a requirement to submit a Form D81 ‘Statement of Information for a Consent Order’ to the Court before a Consent Order can be approved.

“I’m not happy and I want a divorce, but I don’t think I can afford to…”

“I want a divorce, but I wouldn’t know where to begin…”

If you are considering divorce, or beginning divorce proceedings, you might be worried about the legal cost of doing so. We understand that you don’t want to worry any more than you have to during this stressful and emotional time of your life.

Most people seeking divorce will need legal help at some point, although it is possible to deal with certain parts yourself. While the internet yields some good general advice on divorce, none of it is tailored to your personal situation.

Our Family Law Solicitors in Brighton take the time to get to know your needs and to help you come to mutual agreements on what is best for you, your partner and your children. We can help with general guidance, advise on the process, and can formalise any financial agreements you make through our divorce help service.

We can offer help and advice on the following:

  • General advice on divorce and any issues concerning children, property and finance. We can offer you a free meeting for up to forty five minutes to discuss any or all of these issues. We know how traumatic it can be to decide who will look after children, or who will continue to live in the house, so we can help lessen the stress by giving you clear, solid advice that leaves no room for worry or concern.
  • If you are the one to initiate the divorce (called the ‘petitioner’), we can advise you on when the divorce petition -and the statement of arrangements for any minor children – will be completed. We know it can really help ease your mind to have a clear timeline, making it easier to plan your future. We can also advise you of the next steps to take in order to finalise your divorce.
  • If your partner is initiating the divorce (making you the ‘respondent’), we can advise you on your position and how to respond to the divorce papers, assuming that you have no objection to the stated reasons for divorce.
  • We can advise you generally on any issues relating to any children, assuring you of your rights and helping you make these decisions in advance, so no pressure is put on either partner to make quick decisions they might later regret.
  • We can advise on proposals for a financial settlement, helping each partner to come to a mutually agreeable decision regarding joint income or assets you may have accrued during your marriage. Advice on these issues in advance can really help stop heated arguments later down the line as both partners know where they stand.
  • We can draw up the application for a consent order, which records the terms of an agreed settlement, and we can assist you in completing the statement of financial information required by the court. These forms can be complicated, and we can help ease the strain of reading through complex documents by doing it for you. We can explain any terms you don’t understand and make sure you completely understand the process and what you’re signing.
  • We can deal with any other concerns or questions you might have throughout the process.

You may be particularly interested in this service if you have attended family mediation and have reached agreements as to property, money and children, which have yet to be formalised.

Our fees are very competitive, making it easier for us to help you.We offer a range of payment options including fixed prices and deferred payment.

More information about our charges

What is a Judicial Separation?

A ‘Decree of Judicial Separation’ is a court order similar to a divorce, where a couple remains legally married, but their normal marital obligations cease. It is a form of legal separation. Read more on Judicial Separation.

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