A handy guide to the divorce process with some top tips on what to expect through the journey.
SOLVING PERSONAL LEGAL MATTERS
The divorce process can be a daunting one, with many steps, forms and legal terms that can be overwhelming. Below are our top tips on the journey you are likely to take, and answers to questions that you probably have.
Ask yourself if were born in the England and Wales or do you currently live there.
You need to satisfy the court that the marriage has broken down irretrievably using one of these five facts:
The decree nisi will be granted provided that the respondent has not indicated that they have an intention to defend the petition. The judge must also be satisfied that the marriage has broken down irretrievably. You then must wait a minimum of six weeks until applying for the decree absolute.
Spouses remain legally married until the decree absolute is pronounced. The decree absolute is the final decree and once pronounced, the marriage is dissolved.
You may not agree to a divorce and wish to defend it. Defending a divorce is a timely and expensive process and often does not make a difference to the outcome of the proceedings.
An annulment is made on the grounds that the marriage is void, or voidable. There are several circumstances which would void a marriage, such as mental incapacity, duress or if the marriage has not been consummated.
There are occasions where a respondent fails, or refuses to sign and acknowledge the divorce petition. Although the applicant does not necessarily require the respondent's consent for the divorce (depending upon the fact used), the court does require the respondent to acknowledge that they have received the petition and that they do not intend to defend it.
Unfortunately, there is no such thing as a quick divorce. Even an uncontested and straight forward divorce can take around six months. Each case is different and there is no "one size fits all" approach. The time scales can vary dramatically and is usually dependent upon how long it takes for the financial matters to conclude.
In cases where there have been instances of domestic abuse, it may be necessary to obtain a Non Molestation Order (Injunction) or an Occupation Order to give a party sole occupation of the former family home.
A Non Molestation Order is an Order of the Court preventing your spouse from doing certain acts, for example; contacting you, harassing or threatening you. It makes these actions a criminal offence.
An Occupation Order prevents the other party from occupying a property. It specifically deals with the home. An Occupation Order can provide security for a defined term to give that person sole occupation of the property. These applications can be made on an urgent basis depending on the circumstances of the case.
You may need to make an application to court for maintenance pending suit. During the divorce process your spouse is under a duty to maintain the financial status quo.
For example; if they have supported you, or you them, then this support needs to continue until financial matters are finally resolved. If this is not the case and you are left without financial support, then an application to court (pending suit) can be made. This is an application to cover your living costs on an interim basis.
Freezing Injunctions are a specific Order to restrict a party from disposing of assets during the divorce process. If you have a reasonable suspicion that your spouse is going to remove assets, or transfer them, then an urgent application to court can be made to freeze assets.
Similarly, if a transfer of assets has already taken place, specifically to deprive a party of a particular asset, then the Family Court have the power to set aside such a transfer if it was done deliberately to frustrate a financial claim.
There are various options available to divorcing couples to resolve their finances, and reach a financial settlement; without always making an application to court. The starting point is to try and negotiate with your spouse with the assistance of solicitors. In connection with negotiations, solicitors can arrange round table meetings to try and narrow the issues and undertake negotiations.
If an agreement is reached through solicitors, then a draft settlement documentation known as a Consent Order can be prepared and submitted to the court to finalise all financial claims. If an agreement cannot be reached, then there are other options available. The parties could agree to attend mediation, which is a form of alternative dispute resolution, where an independent impartial and qualified mediator assists the parties in narrowing the issues and reaching a solution.
Arbitration is becoming a more widely used option for resolving family law disputes. The parties agree to engage an arbitrator to resolve claims, without applying to court.
Any assets built up during the marriage, and usually during any pre-marital cohabitation are considered martial assets. The starting point is for there to be an equal sharing of the matrimonial assets. Again the needs of the parties and children are the paramount consideration of the court, and the court can depart from equality to meet a party's needs.
The 'needs' of a party includes meeting their housing needs, as well as income. It also includes provision by way of a pension. The standard of living enjoyed by the parties during the marriage is also relevant.
The process of a divorce and the associated finances can be considered separate procedures, although they are ongoing at the same time. The process of the divorce is relatively straight forward, and the costs incurred are a court fee currently at £550 together with legal fees. It may be that you and your spouse can agree to share the costs of the divorce process itself. Alternatively, you can make an application to court for a Costs Order when you submit your Divorce Petition.
Your legal fees in relation to resolving financial matters are separate and are the more significant aspect of costs in a divorce process. If an agreement is reached with your spouse relatively quickly then of course your legal fees will be much lower than if an application to court is necessary. We will discuss the costs of your divorce and financial matters at the outset and keep you appraised of your costs monthly.
Whilst we can give you an estimate of your costs at the start, in some cases these can increase if your matter takes longer to be resolved than expected at the outset. However we will always keep you updated in relation to your costs.