Relationship breakdown (Divorce and Separation)
My partner and I are common law husband and wife... what rights does that give us?
Well actually, you aren’t common law husband and wife. As a legal concept, common law marriage disappeared in the 1750’s in the UK, and when people refer to this, what they mean is that they are cohabiting, i.e. living together without being either married, or if in a same sex relationship, without having entered into a Civil Partnership. The rights of cohabitees are limited. Please see our page on unmarried couples.
What will it cost?
The fees payable to the Court are £550 on the issuing of the petition. There is no longer a separate fee payable upon applying for your Decree Absolute. Legal costs tend to be in the region of £500 if the divorce is not contested, but different firms charge different amounts These costs and fees relate only to the Divorce itself, and do not cover the cost of dealing either with finances, or child related disputes.
If the matters are to be fought, then an hourly rate is payable to your solicitor, who will give you as best a fee estimate as they can at the outset. However, it is very difficult to know exactly how much work your solicitor will have to undertake on your behalf, as you never know what your “opposition” is going to do, and therefore what you need to do to respond.
How long does a divorce take?
There is no hard and fast rule. If not disputed, a divorce can take between 6-8 months from the issuing of the petition to the Decree Absolute. However, it is often best practice to delay applying for Decree Absolute until financial matters have been resolved, and recorded in a Court Order. We have also noticed that with the change in procedure resulting in all petitions now going through just a handful of Court centres there are delays in certain procedural aspects of the divorce process, although these may be ironed out as everybody gets used to the new arrangaments.
There is no such thing as a "quickie" divorce. The reason that celebrity divorces appear to happen quickly is that the press usually do not get to know about them until the stage of Decree Nisi has been reached, and at that stage Decree Absolute can be applid for 6 weeks and 1 day later (provided that the finances are resolved).
Obviously if the Divorce, or finances are disputed, then the above timescale is greatly extended.
Do we have to go to Court?
If the divorce and financial arrangements are agreed, then there is no need for you to have to attend Court, although the case will be processed through the Court by way of a paperwork exercise. These days over 98% of divorces are dealt with this way. The financial arrangements, if not agreed, will necessitate you attending Court on various occasions. Please see our pages on Financial Remedies and Financial Applications for more information
Do I have grounds for Divorce?
Please see our webpage on Divorce for a brief overview.
Is our separation agreement enforceable?
If drafted properly then the Courts should uphold the agreement. It is usual to draft such agreements specifically in contemplation of the parties entering into the agreement divorcing later, and it is usual to specify that both parties intend to be bound by the terms of the agreement, and intend it to be converted into a Court Order when they divorce.
In order for the agreement to be upheld, you will need to either have taken independent legal advice, or been afforded the opportunity of taking it, have disclosed to each other the full extent of your assets, and freely consented to the agreement.
Can I get Legal Aid?
The Government withdrew legal aid for divorce, related finance, and children cases on 1st April 2013, unless there has been domestic violence. It is anticipated that hundreds of thousands of people who would previously have been eligible for Legal Aid will now not be.
Legal Aid remains available for mediation provided that you meet certain criteria.
Unfortunately we are unable to help you with Legal Aid (public funding) as we have chosen not to apply for a franchise allowing us to run legal aid cases, so you will have to seek representation through a solicitors practice that offer public funding if you wish to make an application for legal aid in order to fund your case.
Do I have to attend mediation ?
If suitable, mediation can be a better way of resolving issues about finance, or arrangements for children when you and your partner either separate or divorce. It is not only for couples, however, and wider family disputes can be mediated, such as the question of grandparents contact to their grandchildren. Mediation can be less expensive than going to Court, and less stressful.
Mediation is a completely neutral process which involves an impartial mediator facilitating negotiation between the parties to agree their own arrangements by way of a "Memorandum of Understanding". If you are able to, you should consult a solicitor to look over the Memorandum, and it is advisable to take legal advice throughout the mediation process to keep you on the right track. Depending on the dispute, the agreement reached can be endorsed by the Court as your solicitor will be able to convert it into a suitably worded "Consent Order".
For many Court Applications it is a prerequisite that you have attended a MIAM (mediation Information and Assessment meeting) where a mediator will assess whether or not your dispute is capable of being resolved through mediation.
As the applicant to the Court you are expected to have contacted a family mediator in order to make arrangements to attend a MIAM with a family mediator or to provide reasons why you have not done so Form FM1.
Please note that it is open to either party to say that they would prefer to attend a MIAM separately, and mediators have a responsibility to ensure the safety of all concerned.
It is, however, entirely your prerogative to refuse to attend mediation.
Is our prenup enforceable?
Provided that it meets the requisite criteria, the Court should uphold the pre-nuptial agreement. In the case of Radmacher and Granatino the Supreme Court set out the factors to be considered, and the criteria met, and stated that providing these were present then the Court “shall” uphold the agreement. However, the Court always has a discretion, and the current state of the law does not bind them to upholding the agreement set out in a prenuptial agreement Please see our page on Prenuptial Agreements for further detail.
My husband refuses to disclose the full extent of his financial assets? What can I do?
It is important in any case that there is full (absolute) disclosure of the your respective finances. Normally a request is made for voluntary financial disclosure. This includes details of all assets (including business interests), liabilities, income, outgoings and pension provision with documents in support.
Where one party refuses to do this then you are entitled, within divorce proceedings, to make a financial application using Form A. The Court will then automatically set a court timetable for certain tasks to be completed. One of those tasks is the preparation and exchange of financial information in a form called a Form E. It is a requirement that documentary evidence of the information in the form is also produced, such as 12 months bank statements, pension valuations etc.
You are then entitled to consider the financial disclosure and ask questions of the information provided. Failure to comply with this requirement can result in you being ordered to pay costs i.e. the other side’s legal costs.
What type of financial package can I expect to receive after my divorce? What am I entitled to?
We can’t answer this question without fully understanding a lot more about you and your family financial situation. Please see our pages about Financial Applications and Financial Remedies for an overview.
Can I take my child abroad on holiday?
It depends on who has parental responsibility for the child/ren. Please see our page on removal for further information.
Am I entitled to financial support for looking after the children if we separate?
Your former spouse or partner is obliged to support the children. If you cannot agree on how much they will pay, then you will need to make an application for child support, either to the CSA or the CMS. The CSA website (www.csa.org.uk) contains a calculator so that you can calculate roughly how much child support maintenance should be payable. The new scheme, which is currently being rolled out, in operated by the Child Maintenance Service (www.gov.uk/child-maintenance). You can agree a greater or lesser figure between you if you wish, and the governments current approach is to prefer parties to nreach agreement rather then rely upon the agencies to calculate child maintenance.
What are my rights to see the children?
Contact (Access) is the right of the child, not the parent. Provided that the child is not put at risk of harm, or having their welfare harmed by their having contact with the parent concerned, then contact should and will be ordered by the Court. From 22nd April 2014 Contact and Residence Orders will be no more, and will be replaced by "Child Arrangements Orders" which will deal with where and with whom the child should live and whom they should see, and when.
It is usual to try and negotiate contact arrangements either by direct negotiation, or by attending mediation or through collaborative practice, but if you cannot agree, an application should be made to the Court for a contact order. You cannot make an application to the Court without having first attended a M.I.A.M. (Mediation Information and Assessment Meeting). The Court also has the power to make a wide range of orders in relation to children, such as where the child should live,or which school s/he should attend.
Can I change the locks to the property?
If the property is jointly owned then strictly the answer is no, as you both have the right of entry. If the locks are changed, you may have to apply to the Court for an order allowing you back in to the property. If you find yourself locked out you should not seek to force entry, as you may find yourself being arrested for an offence such as behaviour likely to cause a breach of the peace. In theory you can force entry, but once you have been arrested then this advice is of little comfort to you. If you are locked out then take legal advice.
If I leave the home, do I lose my rights to it?
If the property is in joint names then the answer is no.
If you are married the equity in the matrimonial home will be taken into account, when the financial settlement is dealt with, even if you no longer live at the property. On a practical, and tactical level however, you may have less negotiating power if your other half is happy living in the house now that you have moved out, and you may find that suddenly there is no incentive on their part to want to move things along at any great speed.