Everything you need to know about getting divorced
Going through a divorce or separation is an incredibly difficult time and it is natural to feel a wide range of emotions and have questions and concerns. Whether it is your decision to start things or it has come as a complete shock, the information included in this support hub aims to guide you through the process, explain your options and answer your questions.
You now no longer need to list a reason for the marriage coming to an end. No fault divorces are intended to be straightforward, without blame and to prevent those divorcing from having to start with the process listing unpleasantness within the marriage.
The stages of a divorce
It is helpful to think of ending a marriage or civil partnership as three separate strands, which can all be finalised at different times. These are the divorce, child arrangements and financial settlements.
On 6 April 2022 the new law in relation to divorce came into effect, which enables couples to divorce without attributing blame. What are the key changes?
- The language used is being updated:
‘Decree Nisi’ will become a ‘Conditional Order’
‘Decree Absolute’ will become a ‘Final Order’
‘Petitioner’ (the person submitting the application) will become the ‘applicant’
- It will no longer be possible to base an application for divorce on adultery or unreasonable behaviour.
- Couples will no longer have to be separated for a minimum period of time to apply for a divorce without attributing blame.
- All divorce applications will be based on the statement that the marriage has broken down irretrievably.
- There is no need for the applicant to provide any reasons to explain why the marriage has broken down.
- The statement that the marriage has broken down irretrievably cannot be contested by the other party, so there will be very few cases where an application for divorce can be challenged.
- Couples can make a joint application for divorce if they choose to.
- There is no automatic option for the party applying for a divorce to claim the costs of that process from the other party, although they can still make a separate application to the court for this in appropriate cases.
- Applicants will have to wait at least 20 weeks from the date that the divorce application is issued before they can apply for a conditional order and they will have to wait a further 6 weeks from the date of the conditional order before they can apply for a final order. This means that the divorce process will take at least 26 weeks from the date that the application is issued, and probably slightly longer than that.
When you separate or divorce, the arrangements for the children can be difficult to resolve. There may be a number of things which require consideration, such as:
- Where will the children live?
- Who will they live with and what time will they spend with the other parent?
- The appropriate financial contributions to be made for the children
- What school the children will go to?
It is always preferable to try and come to an agreement through your lawyers or mediation, rather than court proceedings.
There are various financial claims available to married couples and civil partners upon a divorce or dissolution of a civil partnership, and it is important to take expert advice to ensure your settlement best meets your individual needs.
- Claims for periodical payments (maintenance)
- Lump sums
- Orders in respect of property ownership and pensions
- Financial claims for children
When coming to an agreement it is sensible to consider each party’s resources and needs, as well as the needs of any children.
Answering your questions and concerns
Whether you are the one instigating proceedings or responding to them, you will most likely have a million and one questions at the start of any divorce process.
I want to start the divorce process but my spouse doesn’t, what can I do?
You don’t need the other person’s agreement to start divorce proceedings, but it could save legal fees if you get it. Once the process is explained it is usually the case it can be a process started by agreement, if not it can still be done, which is why most people will come round to accepting it as inevitable, especially after they have had legal advice. Getting legal advice early on is very much advised, even if you then deal with the divorce yourself, once you have had advice and have a plan.
What’s the difference between a separation and divorce?
If you separate you remain married, if you divorce you are free to remarry as you have brought the first marriage to an end. The main consideration other than remarriage is the family finances. You can only resolve them in a full and final settlement if you are divorced, any agreement reached is also only enforceable if it is approved by the court and that is only possible on divorce, not separation.
How are we going to afford two homes?
This can seem overwhelming, especially when it feels like there wasn’t enough money to spare when you were all under one roof. Be reassured that there is always a way, it may involve a little compromise on both parts but it is achievable. Getting advice early on helps to make a plan and is more likely to get the process on the right track to start with. If things are agreed and then have to be undone with the benefit of legal advice, it is less likely to be accepted as easily by the other person.
How will I pay the mortgage if I separate or divorce?
If you were married even if the mortgage is in one name, it is very likely the other person will have a responsibility to pay it. Again it is something you should try and agree but if you can’t agree then there are legal avenues available. In the interim whilst it is being resolved, many mortgage companies will listen to the circumstances and try to assist where possible, especially in the short term.
I don’t know anything about the finances my spouse dealt with it all, what do I do?
Many people don’t know the family finances, but the information can be obtained, through agreement or the court process if necessary. In certain cases the courts can order third parties to provide information such as banks. Your family lawyer can help you to obtain the information and if you need financial advice, they can put you in touch with an independent financial advisor.
If we get divorced doesn’t that resolve the finances?
Unfortunately it doesn’t work like that, the divorce is one part of the process, but the finances are another. You can be divorced but the financial claims between you remain open until they are dismissed by the court, either by agreement or court order. If they are left unresolved and one of you builds up assets the ex-spouse could come along at a later date and try to claim an interest in those new assets.
We’re divorced and have sorted the finances ourselves, what else do we need to do?
It’s really positive that you’ve been able to do that, but you need to ensure that the agreement you’ve reached is final to safeguard you both. The best way to do that is by way of a consent order, setting out your agreement in a legal format and then approved by the court as a court order. It can all be done as a paper exercise and doesn’t involve anyone going to court.
How much money should I be paying my spouse now I’ve moved out?
This will very depend on what you can afford and what they need. There is no set formula for paying maintenance to your spouse. Maintenance for your children is much more formulaic and can be calculated using the Child Maintenance Service online calculator. It is sensible to speak to a solicitor to get advice before you commit to a monthly amount.
How will I pay my legal fees for a divorce?
That is a concern for anyone starting this process. You may be able to afford to pay an amount each month which will be enough, in the alternative you may decide to take out a loan either from a family member or a bank etc. If you borrow money from a family member, it isn’t always guaranteed that a court would recognise it as a ‘real’ debt, in the same way they would a loan to the bank. You may also want to consider a litigation loan specifically for family matters, which would allow you to borrow up to a limit to meet legal fees and which is repayable on financial settlement.
Where will the children live after a divorce?
This will be dependent on some practical factors, such as who is staying in the family home in the interim, but it should be based on what is best for the children. Is there one parent who is more responsible for day to day care, would it work for the children to change that? Where are the schools? And as they get older their friends? This is something that should be agreed, even with some help by way of mediation, collaboration etc. If it can’t be resolved then either parent is able to make an application to the court.
I want to see more of the children but my spouse doesn’t agree?
It is important to consider what is best for the children. Is what you’re proposing going to work for the children? Is it what they would want? Term time arrangements are usually more problematic as school has to be a consideration. If agreement can’t be reached directly would mediation or a collaborative discussion help? If the children are older would it help for them to speak to a mediator to give their views? If agreement can’t be reached and an application becomes necessary to the court, both parents need to understand that neither of them will get to make a final decision as to what is best for the children as the court will do it for them. This can be a good incentive to restart negotiations, that and the cost of court proceedings.
The children would like to see more of the other parent, how do I encourage that?
Communication is the key. Can you speak to them and explain how the children are feeling? If it’s hard to do it directly, can you do it through the mediation process or with the help of a family therapist? You can make an application to the court, but at the end of the day the court can’t force a parent to spend time with a child/children if they decide they don’t want to, however, unfair that is on the child.
If the children live with me, can I decide what happens with arrangements?
It is always sensible to try and agree the arrangements, based on what is best for the children and what they want as they get older. It also can depend on safety concerns and logistics with the children not living with both parents. It is quite unusual now for both parents not to have parental responsibility. As a result of that decisions about the children should be made together whenever possible and not unilaterally.
I want to change my children’s schools, but my wife doesn’t, what do I do?
As married parents you will both have parental responsibility for the children. That means that neither of you should be making decisions about the children’s education without the other's consent. You would need to think about why you think the school should be changed and why it is best for the child/children. It would be sensible to set that out to the other parent and if you can’t agree to consider mediation or the collaborative approach. If it’s not possible to reach an agreement, based on what is best for the children and you may have different views on that, it is open to either parent to ask the court to make a decision.
I want to take my children on holiday abroad but my husband doesn’t agree?
Neither parent can take the children abroad without the other parent’s consent or an order of the court. If you chose to do so, without consent you could be accused of child abduction. It is sensible to raise it with the other parent, provide details of where the children will be and when and ask them to confirm in an email that they agree. It is hard to successfully withhold consent, unless the parent doing so can show the proposed trip is a risk of harm to the children. For example a trip to Iraq at the moment. For that reason most parents who don’t agree can be persuaded to agree without a court application being necessary. A court is always going to consider whether the trip is in the best interest of the child/children.
We’ve separated but my spouse refuses to move out, what can I do?
That is a difficult situation, if you have children it is going to be very hard for them with you living under the same roof. If the property is jointly owned it is very difficult to force one spouse to leave if they won’t go. In most cases parties agree between them to physically separate as it is too uncomfortable to continue to live together. If it can’t be agreed, then in the event there has been domestic abuse it may be possible to obtain an injunction removing them from the property. This is not easy to do and will always depend on the circumstances of the case. Alternatively it may be an incentive to resolve financial matters sooner, but the main concern to both parties if there are children is how the children will be impacted if they continue to live together in the short term.
How do I find a divorce lawyer I can trust?
Make some enquiries of friends, family and colleagues. A recommendation for a solicitor can be the first point of call. Check whether they are a resolution member. Call them and ask to speak before you make the appointment. It is important that you feel you can work with the solicitor and that you feel comfortable.
What are the main things I need to think about ahead of my first meeting with a divorce lawyer?
It can be daunting to meet with a solicitor to discuss the end of a relationship or difficulties with arrangements for children or domestic abuse. These are all emotive subjects and discussing them with a stranger may feel overwhelming. You may also be concerned with the cost and want to use the time effectively.
It’s sensible to make notes ahead of the meeting, it will help you to remember what you want to know and any questions you specifically want answered. If there are financial matters to be considered, it’s helpful to have prepared a list of assets, liabilities etc., at least as much as you know. It can also be helpful to have a trusted third party with you for support and as another pair of ears. Don’t be concerned to ask questions or raise private matters, family solicitors are relatively unshockable and should be empathetic.
Please be reassured that court applications will always be a last resort. Lawyers who are members of resolution will always try to explore alternative ways to resolve matters.
- It may be possible to reach an agreement directly with your former partner/spouse, and you may only want the solicitor to advise on the agreement and draw it up
- It may be helpful to have the assistance of a third party to discuss matters relating to children and finances. A third party trained in mediation can assist in discussions and guidance
- Collaborative law, involves all discussions and document drafting being done together sat round a table. The solicitors guide their clients but they work together to help them resolve matters. The process is very much led by the clients and all parties sign an agreement not to go to court
- Negotiation by way of round table meetings, written offers and all without court proceedings
- If further intervention is needed to come to an agreement, arbitration can be used to avoid the need to go to court. It allows the clients to agree when and where the arbitration will take place.
It should be said that sometimes alternative ways of resolution may not be appropriate. Where there has been domestic abuse, coercive and controlling behaviour it is not possible to use mediation or collaborative law as one party will be disadvantaged and it would not be appropriate for them to be sat in a room together.
Legal support is just one part of the puzzle and we can also introduce you to third parties who we trust who can provide therapeutic support, financial advice, tax advice and specific advice re: pensions.
Other places to access help and advice
www.voicesinthemiddle.com – is helpful for children whose parents are separating, it’s aimed at older children.
www.gingerbread.org.uk – provides support to separated parents
www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-together/supporting-your-children-through-divorce-and-separation/ - cafcass have information for parents separating
www.youngminds.org.uk/young-person/your-guide-to-support/guide-to-camhs/ - CAMHS can offer support to young people struggling with the separation
www.fegans.org.uk – Fegans are a local charity who can provide emotional support/counselling to young people and families
www.cafcass.gov.uk/grown-ups/parents-and-carers/directory-of-providers/#A17 – Information in Kent for Separate Parents Information Programmes.
www.relate.org.uk – can provide advice for adults going through a divorce/separation
https://resolution.org.uk – can help you to find the right lawyer in your area
www.refuge.org.uk – can provide advice and support if there has been domestic abuse
www.davss.org.uk – can provide advice and support for those suffering domestic abuse in West Kent
www.familymediationcouncil.org.uk – lists mediators locally and nationally
We are here to help, so please let us. Call one of the family team for an initial consultation.