Liverpool Solicitors

Getting a divorce in the UK is reasonably straightforward if both parties can agree on how the marriage should end, what happens with any children and how their assets should be divided. If however the parties cannot agree then the divorce process will be more difficult as the court will determine what happens relating to finances, the division of shared property and arranging who gets custody over the children in the long term.

Will court attendance be needed?

Unless the divorce is being defended parties do not normally need to attend court.

Despite this it is likely that the assistance of a solicitor is desirable in order to take you through the stages of divorce.

The Procedure

If the marriage has lasted more than a year divorce proceedings can be initiated by the ‘petitioner’ filing for divorce. The other spouse is known as ‘the respondent’. If the divorce is less than a year old then proceedings cannot be initiated. Where the decision to divorce is mutual then the couple must decide between them who is the respondent and who the petitioner is.

The petitioner is required to prove that the marriage has ‘irretrievably broken down’.

How long does it take?

The proceedings of divorce could take anything from 3 to 6 months or maybe even more depending on your size of assets, how long it takes the respondent to complete and deliver the documents and whether there are any problems with the couple being able to compromise about arrangements relating to finances or the children.

If there is a significant disagreement between the petitioner and respondent then court attendance will be recommended. When all decisions are agreed upon then the process is much quicker.

How are arrangements for children made?

The courts will only get involved in matters regarding children if the parties cannot reach any kind of agreement or if the court is unsatisfied with suggested arrangements traditionally submitted before the divorce is finalised. Any arrangements made for children should be organised by the court separately from other matters.

Divorce Solicitor Fees

If you decide to use a solicitor to assist with the proceedings fees may vary. The actual amount will depend on whether the divorce is contested. It will be more difficult to provide in this scenario but if the divorce has not been contested it will be possible to charge a set fee.

Alternative Solutions to Divorce Issues

If the parties cannot agree the divorce settlement together then instead of going to court there is the option of using alternative dispute resolution which should avoid mounting costs spiralling out of control. This involves an independent person normally someone familiar in the realms of divorce law when dealing with such cases, settling the dispute without the need for a court hearing. The outcome can be either binding or non-binding depending on what the parties agree to.

Mediation

Mediation is a branch of ADR which can also be used in divorce matters. It is normally monitored by a neutral professional person who works with both parties to come to a resolution for the dispute in an environment which is private. Meetings between the parties and mediator can take place all together or separately depending on the parties’ preferences. If the parties come to a satisfactory conclusion the courts will not need to get involved but may need to if they do not.

Divorce – Overview and Effects

In order to ensure a swift conclusion parties should when applying for a divorce be prepared to fully disclose all their valuable assets, such as property or funds.

When the divorce has been concluded the wife is still permitted to use her ex-husband’s name or she has the option to go back to her maiden name.

If my husband starts proceedings in another European country, can I then start proceedings in England ?

Generally proceedings will take precedence in the country where they are commenced, subject to the domicile rule. This can be an important reason to start proceedings quickly in England as if proceedings are in another European country, different rules may apply which may affect your financial settlement.

Do I not have rights as a common law spouse?

The concept of common law husband and wife is a myth. Courts cannot order one person to support another by paying maintenance unless they are or have been married. There may however be other circumstances giving rise to a claim against property. Also, if one partner has died, the court can order the executors of their estate to provide some form of support under certain circumstances.

Are pre-nuptial agreements binding?

Whilst pre-nuptial agreements are not conclusive as to the way in which the court will deal with a divorce, it is also incorrect to say they will be simply ignored. It depends on the case, the length of marriage, the reason behind the agreement and content and whether there are children of the marriage.

We married abroad, can we still divorce in England?

The issue is not where you married, but where each of you are living. You can divorce in England if either you, or your spouse are habitually resident or domiciled in England or Wales at the time iof divorce and whatever your nationalities

What kind of Orders do the courts make on divorce ?

Under Section 23 of the Matrimonial Causes Act 1973, the Court has wide powers to make orders on property, assets and future financial provision between spouses, including :-

• 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, when it matures to another party.

In deciding the correct approach, the Court takes into account many factors, including;

• The welfare of any minor child of the family, which must come first.
• 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’.

Which Court will deal with my divorce?

A Divorce Petition can be issued in any divorce County Court in England and Wales, and does not have to be issued in the area where you or your spouse live.

I am the father and did not get married, do I have any rights to the children ?

If the child was born after 1st December 2003, and your name was registered on the birth certificate as being the child’s father, you have Parental Responsibility and have the same rights as if you and the mother were married. Otherwise, you do not have any automatic rights so will need to either agree with the child’s mother or apply to court for a parental responsibility order.

Maintenance for the children ?

The non-residential parent has a legal obligation to pay maintenance in respect of his or her child. If agreement as to the appropriate level of maintenance cannot be agreed, application has to be made to the Child Support Agency. The CSA formula is 15% of net income (gross income less income tax, national insurance and pension contributions) for one child, 20% for two children and 25% for three or more. This can be reduced to take into account various factors, the most common of which is the amount of time the children spend with the non-residential parent. The income of the residential parent is not relevant, nor is the income of either parent’s new partners.

In  divorce, ancillary relief or children proceedings can I claim legal costs against the other party?

If a divorce is based on adultery, desertion or unreasonable behaviour of the other party, the Court might decide that he or she should pay your costs. Normally in a separation case, each party will pay their own costs. It is very unusual for one party to be ordered to pay the costs of the other in a case concerning the welfare of their children. In disputes over money arising on divorce, (ancillary relief), the starting point is that each party has to pay their own costs and expenses, subject to the fact that if one party is seen to be lying, withholding evidence or failing to co-operate, that party may be ordered to pay costs at the court’s discretion.

Can I change my child’s surname?

This is not straightforward. If you share Parental Responsibility for the child with the father, (or anyone else), you will need to seek the consent of everyone else that has Parental Responsibility and you should not change your child’s surname without all of their consent in writing. A child’s surname is considered to be a welfare issue to be determined by the court under the rules in the Children Act 1989.

The father of my child does not pay any money towards his support, can I stop him having contact?

This is treated as a separate issue from contact. If the father is not paying maintenance, this issue should be pursued through the CSA, and the child’s emotional welfare must always be put first.

What if my ex wants to take our child abroad on holiday, or go abroad to live permanently?

If you have parental responsibility, then normally your permission is needed for any trips abroad (although there are some exceptions to this). If you cannot agree on this, then you can apply to the  court to decide the matter.