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In our daily work for our clients, our Family team; Lucinda McWatt, Emma Kendall, Joanne Graham, Rebecca Wolfenden and Pam Walsh often come across the same questions from existing and “would be” clients. To help, we have put together a list of the most commonly asked questions and our replies.
Please feel free to contact us on 0161 785 3500 if you require further assistance, as these replies are general in their content, and each case has its own very personal set of circumstances which may need specialist help from our dedicated team.
We hope that this is of some assistance to you, but please note the answers provided below are generic rather than directed at your particular case, and in this complicated area of law, there is no substitute to obtaining specialist legal advice when it is needed.
What Reason Do I Need to Get a Divorce?
The most common petitions are unreasonable behaviour, adultery and two years separation.
Do I Have to Wait For a Specific Period of Time Before I Can Issue a Petition?
There is a rule that you cannot issue a divorce petition until you have been married for one year. After that date, you can issue a petition based on unreasonable behaviour or adultery at any time, but you would have to be separated for a full two years or five years, for either a two year or five year separation divorce.
How long does a divorce take?
This depends on a number of factors, but if your solicitor is well organised and progresses the divorce promptly (and other side engages, and we get timely instructions from you) it should take between five and six months.
What if my husband/wife is being difficult and will not acknowledge the divorce papers?
If your petition is based on unreasonable behaviour or five years separation, you will still be able to proceed if you can prove to the court that the other party has received the papers. This is normally done by way of personal service by way of a process server or court bailiff. Alternatively, an application can be made to the court for deemed or substituted service.
If your petition is based on adultery or two years separation, it may well be very difficult to proceed as an admission of the adultery alleged or written consent to the two years separation is needed. In those circumstances, you may wish to consider applying to amend your petition to an unreasonable behaviour petition.
Is legal aid available?
The Government has now withdrawn Legal Aid from the vast majority of divorce cases. It is, however, still available in very limited circumstances which involve domestic violence. We will of course consider this with you when we meet to discuss your case.
How much does it cost?
The disbursements are currently £550.00 to issue the divorce petition at the Court and this includes the Decree Absolute at the end of the divorce action.
Can I get the other side to pay my divorce costs?
Again this depends on the circumstances of your case. If you are issuing a petition on a 'fault' ground (adultery or unreasonable behaviour) it is possible to apply for costs, although we do suggest that the issue of costs is addressed early on in the case so as to avoid any unnecessary aggravation further down the line, which may in turn increase costs if issues relating to finances or the children become acrimonious.
It is often the case that we can agree the cost position with your spouse (or his or her solicitor) before proceedings are issued. We are committed to dealing with cases in a manner that avoids unnecessary conflict and we will therefore consider this position with you at the first interview, and come up with an agreed plan of action with you.
What do I need to issue a petition?
You will need the original or a certified copy (available from the registry office) marriage certificate, the court fee (currently £550.00) or if you qualify for a fee remission from the court, a fee exemption form from the court, and of course your instructions for us to complete the divorce papers. If you were married abroad and the certificate is not in English, you will need a certified translation and an Affidavit confirming the accuracy of the translation. If need be, we can arrange for this, but extra costs will be incurred. Also, if there have been any previous court proceedings (for example injunctions, or in respect of the children) we will need the court orders.
Does my husband/wife need a solicitor? Can we both use the same solicitor?
Rules of professional conduct prevent us from acting for both parties. It is entirely a matter for your spouse as to whether they obtain legal advice, but generally speaking it is best if they do (even if only for a free initial interview with another solicitor) so at the very least they know where they stand.
Can I still get a divorce if there are ongoing issues or proceedings relating to our children?
The court does have the power to order that the Decree Absolute should not be granted until the court is satisfied with the arrangements for the children. We can advise about this as and when the need arises as our team is very experienced in children issues. It is rare for there to be any significant delay in the divorce action if your solicitor acts promptly and with the appropriate skill and knowledge.
If the divorce is granted before financial matters are resolved, does this mean either of us is prevented from making claims?
No. However, it is good advice to consider whether you should delay applying for the Decree Absolute if, for example, the other party has significant assets (in particular pension rights) which may be lost in the event of their untimely death after Decree Absolute but before financial settlement. Please also note that you should seek specialist advice if you are considering remarrying before a financial settlement has been reached, as you could in that circumstance lose your right to make a claim.
Do I have to wait until I am divorced before I can prepare a Will, or amend my existing Will?
No. On the contrary, it is advisable for you to consider this upon separation and our specialist private client solicitors are available to assist. You should also consider the terms upon which the family home is held at this stage, as it is often held as “joint tenants” which means that in the event of your untimely death it would pass automatically to your spouse, rather than under the terms of your Will. We can address this with you so as to prevent this from happening.
I have heard of an organisation called “Resolution”, what is it?
Resolution is an organisation for family lawyers which commits them to resolving disputes in a non-confrontational way. Members are trained and encouraged to deal with family law disputes in a constructive way, designed to preserve people’s dignity and to encourage agreements. Our firm is committed to this approach, and all the lawyer members of our family team are members of Resolution. You can obtain details of the organisation at www.resolution.org.uk.
I work so find it difficult to get time off to see a solicitor, do you provide out of hours appointments?
What does it mean?
It simply means the process of sorting out all of the financial matters that arise following your separation, such as the house, savings, debts, maintenance, pensions, household contents and any other possessions.
Do we need solicitors to sort out our finances, even if we can reach an agreement between ourselves?
It is usually advisable for advice to be taken by both parties as this is a very complicated area of law. If you can reach an agreement, we would suggest that you do need advice for the appropriate documentation to be drawn up, which confirms the terms of agreement and provides protection for both parties. Agreements are very important, and do depend on the circumstances of the case and the terms of the agreement, so we would rarely advise a client to draw up an agreement themselves.
How do I make sure my spouse cannot renege on the agreement in the future?
It is important for any agreement reached to be properly drawn up. If the agreement is reached within the context of divorce proceedings, the appropriate method would be for a consent order of the court to be drawn up, and lodged with the court for approval by a Judge. Once approved by the court it becomes binding upon both parties and can only be challenged in very rare and limited circumstances. If the parties are not considering divorce proceedings at this moment in time, the appropriate way to proceed would be to draw up a separation agreement, which is in effect a contract between the parties.
Our firm is Lexcel accredited (the Law Society Management Standards Accreditation) and as such we are obliged to provide accurate quotations for work we undertake and therefore we would be quite happy to give you a clear indication as to the costs involved in drawing up any agreement, once the issues are made clear to us.
Does the case have to go to court?
No. We are members of Resolution which commits family lawyers to resolving disputes in a non-confrontational way and in the belief that family law disputes should be dealt with in a constructive way, which can only benefit both parties as it will limit legal fees, delay and the inevitable emotional upset of being involved in a dispute with their former partner. We will therefore do our best on your behalf to promote an agreement but court proceedings may well be necessary if the other party is not responding to our approaches, or if an agreement simply cannot be reached between the parties. If court proceedings are to be instituted, divorce proceedings have to be issued first, and any court order can be made after the date of the Decree Nisi of Divorce.
Is there any other way of resolving the dispute?
As stated, many agreements are often capable of resolution by way of early negotiation. Also, it may be appropriate for the parties to consider a referral to mediation whereby an independent mediator would meet with both parties to try and promote an agreement or narrow the issues between the parties. The outcome of mediation is not binding upon the parties and after mediation both will be advised to see solicitors to consider what was agreed at mediation, and if they are still prepared to proceed on that basis the solicitors will be instructed to make the agreement binding.
Is legal aid available for financial cases?
Answer - The Government has now withdrawn legal aid from the vast majority of divorce, financial and children cases. It is, however, still available in very limited circumstances which involve domestic violence, and is still subject to financial qualification. We will of course consider this with you when we meet to discuss your case.
Do I have to pay my legal aid back?
It depends largely on the outcome of the case. The Aid Authority have a mechanism for recovering costs that they have paid out on your behalf and this is called the “statutory charge”. This means that if you recover or preserve assets within the proceedings, you will have to pay the Legal Aid Authority back, when you receive your settlement. This factor should be borne in mind when dealing with the case as it is not necessarily accurate that legal aid is free.
How much does it cost?
This does depend on the amount of work we undertake on your behalf. If an agreement can be reached, this works out a lot cheaper for both parties and, as indicated above, we do give regular and accurate cost estimates to you. If court proceedings are issued, then largely speaking it depends on how far the proceedings go, as generally there are three levels of hearing, namely a first directions appointment, a financial dispute resolution hearing, and a final hearing if the case does not settle. We will keep you regularly advised with regard to the cost position on your file, and we will raise regular invoices to you.
How do I pay my legal fees?
We believe that we are very reasonable in our approach and will be happy to agree an arrangement with you, whereby regular bills will be raised and, if need be, a standing order arrangement entered in to whereby we receive payments from you on a frequent (weekly or monthly) basis. However we will need you to pay to us court fees and other disbursements (valuation reports, barrister’s fees etc) before those payments are incurred on your behalf.
We have reached an agreement and as part of the agreement I keep the house. How do I deal with this?
This depends on the terms of the agreement, for example whether or not the house is to be transferred to you outright or whether the house is to remain in joint names but you can continue to live there. If the property is transferred to you, you will need consent of the building society if there is a mortgage on the property.
We have an in-house conveyancing team who can deal with the property transaction on your behalf, and we also have an in-house financial services team who can assist in dealing with any mortgage issues on your behalf. If on the other hand the house is not to be transferred at this stage, but one party is to remain in the property, you definitely need for the agreement to be properly drawn up to avoid any future problems in that respect.
My spouse has a large pension, can I make a claim against it?
Yes, a pension fund is viewed as an asset of the marriage. However the value of the pension fund must be considered in the context of the case, and in particular the other assets involved and the circumstances of the marriage (length of marriage, ages of parties, number of children etc). The pension could be dealt with by way of offsetting (whereby you get a bigger share of the other assets and do not touch the pension) or by way of a pension sharing order (whereby you get an actual share of the pension fund).
This is a very complicated area of law and you will need specialist advice both on the legal aspect, and the financial advice aspect, and, as indicated above we do have our own in-house financial advice team who specialise in this area. If you need advice in this respect then please feel free to contact Simon Taylor at this firm.
What evidence do I have to produce, and how?
In any case involving matrimonial finances, there is a duty of full and frank disclosure upon both parties. If court proceedings are necessary, both parties will have to complete a financial statement in Form E which is a lengthy and complicated document. It is a well drafted document and includes the majority of the information needed by the court to resolve the dispute between the parties.
What I am entitled to?
This is a very difficult question. This area of law is very complex and flexible, with the court having a very wide discretion indeed as to the order or orders that it can make. The court has to delicately balance the needs of both parties and the children. We would suggest that both parties would definitely need specialist legal advice in this respect.
If my case goes to court what happens at court?
The court generally speaking is keen for the parties to reach an agreement, because the court is aware that reaching an agreement will save the parties a considerable amount of money in legal fees, and it also saves court time. There are generally three court hearings if the case proceeds to a final hearing. The first hearing is called a First Directions Appointment, which is largely procedural and the court will decide what further evidence needs to be called in the case (for example valuation evidence, further documentary evidence etc.) The next hearing is the financial dispute resolution hearing when the case has to be properly prepared by both parties or their representatives, and the respective positions of the parties are put to the Judge who will then give an input as to his or her views as to the likely outcome of the case.
It is hoped at this stage that the case will settle. The Judge who deals with the FDR hearing will not then be able to deal with the final hearing, if one is necessary. If however an agreement cannot be reached, the court will at the FDR hearing then make further directions for the listing of the case for a final hearing.
Divorce and Children Issues
My partner and I are separating. Is there any guidance available to help us handle and hopefully resolve our issues concerning the children?
Resolution (a professional organisation of specialist family lawyers which is committed to the constructive resolution of family disputes) has set up an initiative called “Parenting after Parting”. The purpose of this is to help parents manage the effect of their divorce or separation for their children. For further information about this please go to www.resolution.org.uk/parentingafterparting. We are members of Resolution.
Does there have to be a Court Order regarding the children?
No. If both parents can agree the arrangements for their children (where they will live and how much time they will spend with each parent etc) the Court does not need to become involved. However, in any divorce proceedings the Court will be told about the plans (in a form called the Statement of Arrangements) to check they are in the children’s best interests. It is unlikely that the Court will object provided the arrangements are reasonable and there are no child protection concerns.
Are there any guidelines about what is considered to be a fair arrangement?
The Court’s priority is to look at what is in the child’s best interests and this should also be the parents’ main concern. Obviously this will vary according to the child’s age and the circumstances of each case. In most cases it is usually considered in the best interests of the child to spend time with both parents.
What happens if we cannot reach agreement?
Even if parents cannot agree matters between themselves, they may be able to reach agreement through mediation. This may well be swifter and more economical than going to Court. Another option is for each parent to consult a solicitor who should handle the case sensitively, pro-actively and with the aim of resolving the issues between the parties with the minimum of delay and acrimony. Otherwise it will be necessary to make an application to Court for a decision about who a child lives with and how and when the other parent will have contact with the child. The Court also has the power to make a “Specific Issue Order” to resolve a particular disagreement (for example, about which school a child should attend). In some situations an application can be made to Court to forbid a parent taking certain steps, for example, to prohibit the child being taken out of the country.
Even after court proceedings have been started it is still possible for parents to achieve agreement at an early stage in the process without the need for evidence to be filed or a full hearing. At the first (compulsory) informal hearing known as the Conciliation Appointment, an independent Child and Family Reporter (CAFCASS officer) will be present to help the parents and the Court identify any common ground and reach agreement if possible. It is often unnecessary for the proceedings to continue beyond this stage.
How will the Court reach a decision?
Under the Children Act 1989 the child’s welfare is the paramount consideration when the Court decides any issue regarding a child. In reaching a decision the Court applies the “welfare checklist” which looks at:
- The child’s wishes and feelings according to his or her age and understanding.
- Their physical, emotional and educational needs.
- The likely effect on the child of any change in his or her circumstances.
- Their age, sex, background and any characteristics which the Court considers relevant.
- Any harm which the child has suffered or is at risk of suffering.
- How capable each parent is of meeting the child’s needs.
As well as considering evidence from each parent the Court may ask a CAFCASS officer to meet with the family and sometimes to produce a report to assist with the decision. As soon as any application concerning a child is made to the Court special consideration is given at a very early stage as to whether the child is at risk of any potential harm.
What are my rights in relation to my child?
Instead of focusing on the “rights” of a parent, the emphasis in family law is given to the rights of the child. Generally, a mother will usually have Parental Responsibility for her child. However the child’s father will only have Parental Responsibility if:
- He is married to the child’s mother when the child is born (or later marries the child’s mother).
- The child was born after 1 December 2003 and he is named on the Birth Certificate when the child’s birth is registered.
He has a Parental Responsibility Order or a Residence Order from the Court.
It is also possible for parents to enter into a formal agreement for Parental Responsibility, without recourse to Court.
Is it possible for a child to live with both parents?
Yes. The parents can agree this between themselves if they think it is best for the child. However, if they disagree over who is to care for the child full time, the Court can make a Residence Order or a Shared Residence Order specifying that the child will live with one parent or both parents on a shared basis. A Shared Residence Order does not necessarily result in the child’s time being split equally between the parents but reflects that a child needs to spend a significant amount of time with both parents and has a home with both of them. As with any other Order concerning a child the Court will only make a shared Residence Order if it is satisfied that this is in the child’s best interests.
What can I do if my ex partner is difficult about me seeing our child?
You can make an application to Court for a Contact Order. It may be possible to agree the amount and times of contact after the application has been issued, for example, at the first informal Hearing called the “Conciliation Appointment”, as detailed under question "What happens if we cannot reach agreement?". If this is not possible the Court will impose a Contact Order on you and your ex-partner. The level of contact will depend on the individual circumstances of the family and may well need to be reviewed after a period of time or if there are any changes in the circumstances. As a general principle, the Court considers that it is in a child’s best interests to have regular contact with both parents and for this reason it is very unusual for the Court to make an Order for no contact between a child and his/her parent.
If the Contact Order is breached it may well be necessary for further applications to be made to Court to enforce the Order. For example, theoretically the Court could fine, or in the last resort, imprison the parent who is in breach (although Courts are usually reluctant to do this as it is unlikely to be in the best interests of the child). In extreme situations where there have been persistent breaches of a Contact Order the Court may transfer residence of the child from the non-compliant parent to the other parent.
My ex-partner will only agree to me seeing the children if my new partner is not present. Is this allowed?
If the new relationship is still at an early stage and the children are very young the Court will usually consider it appropriate for the children to be introduced gradually to a new partner, once the relationship is more established. The Court and CAFCASS Officers are accustomed to parents having new partners/spouses and providing there are no child safety concerns generally consider it is in the child’s best interests to develop a good relationship with both parents’ new partners.
Do other members of my family (e.g. grandparents) have a right to contact with my child?
Other members of the family including grandparents do not automatically have any right to see the child. However, they can apply to the Court for permission to apply for a Contact Order which is likely to be given if the Court is satisfied that this would be in the child’s best interests.
Can I prevent my ex-partner taking my child to live abroad?
Provided that you have Parental Responsibility for your child (see question "What are my rights in relation to my child?") your ex-partner will need the Court’s permission in order to relocate abroad with your child, if you do not agree. As with all other applications concerning children the Court will only grant permission for the child to be relocated if it is considered to be in their best interests. These applications (known as “leave to remove” applications) are obviously very sensitive and often need the Court’s involvement before they can be resolved.
A parent with Parental Responsibility is generally allowed to take the child abroad for holidays of up to 28 days without the consent of the other parent with Parental Responsibility or an Order of the Court. However, if a parent permanently removes the child from the country without the other’s consent or a Court Order they will be abducting the child and international proceedings can be brought for the return of the child.
If you are concerned that your ex-partner is planning to take your child to live abroad against your wishes, you can make an emergency application to Court for a Prohibited Steps Order to prevent your child being taken abroad. Please note however that this Order may trigger your ex-partner into making an application for leave to remove the child.
Do I have a right to be involved in my children’s upbringing even if they live with my ex-partner?
Yes. If you have Parental Responsibility you are entitled to be consulted by your ex-partner on any important issue concerning the children e.g. choice of school, consent to medical treatment or religious upbringing etc. If you cannot agree on a particular issue, you can apply to the Court for a Specific Issue Order and the Court’s decision will be based on what is in the child’s best interests.
What happens in relation to child maintenance?
Usually child maintenance is dealt with by the Child Support Agency who work out a fixed sum to be paid by the “Non-Resident Parent” to the “Parent With Care” for the child. This is explained in more detail under question "Does the Court ever become involved with child maintenance?".
Parents who live overseas do not pay child maintenance through the CSA (unless they are employed by the UK government or by a UK registered company). In those cases if agreement cannot be reached an application will be made to the Court for a child maintenance Order.
Does the Court ever become involved with child maintenance?
Yes, the Court may be involved where:
- The parents reach agreement about the level of child maintenance (although either may apply to the CSA after 1 year).
- Once the child is 17 (and outside the scope of the CSA).
- If the child or one of the parents lives abroad.
- If there are school fees or other educational expenses to be covered.
- If the parent who is liable to pay child support is very wealthy.
Will the Court always want the children to live with their mother?
The law does not favour mothers over fathers and there is no presumption that the children should live with their mother. In any children dispute the court's paramount consideration is the welfare of the child.
What legal rights does the father have if he is not named on the birth certificate?
We will advise you as to parental responsibility and how this can be acquired or lost.
Since I am getting a divorce, I wish to revert to my maiden name and wish the children to use my name.
You can go back to using your maiden name at any stage. As far as the children are concerned it is possible in certain circumstances to change your children's names and this may be done by agreement or by Court Order, although a successful application to the Court is by no means guaranteed.
What can be done to assist me if my children are not returned to me after seeing their other parent?
We can negotiate on your behalf or, if need be, make the appropriate application to the court.
Costs of divorce
I need to seek legal advice but I am concerned as to what this might cost.
We offer a no-obligation free initial 20 minute consultation.
We will assess if you are eligible for Legal Aid, and if you are not eligible, then we will explain clearly how our charges operate.
What does a divorce cost?
If there are no other issues to resolve (for example, regarding difficulties in relation to contact between the children and a parent, or to sort out financial problems), we offer a fixed fee of £600 plus VAT and Court fees. This is on the basis the divorce is not defended by your spouse and the spouse cooperates with the process.
We cannot control the court fees. At the present time the Court charges £550 to issue a divorce petition. You may qualify for a fee remission from the Court, depending on your financial circumstances, and we can discuss this with you.
Should you receive divorce papers and agree to the divorce, to assist and advise you throughout, we offer a fixed fee of £300.00 plus VAT, again, on the basis there are no other issues to resolve.
We are separated parents and are struggling to agree child care arrangements. We also own a house and have savings and cannot agree what should happen to these. How much will it cost to ask you to resolve these issues?
We will listen carefully to your difficulties and provide you with a cost estimate based on the number of hours it is likely to take to resolve your particular issue.
For example, a case that can be concluded swiftly without the need to go to Court could be resolved with our charges being in the region of between £300.00 and £700.00 plus VAT.
We pride ourselves on our reputation that we are committed to resolving disputes in a non-confrontational way and we believe that family law disputes should be dealt with in a constructive way, designed to preserve people’s dignity, encourage agreement and avoid expensive Court proceedings. All our family lawyers are members of Resolution who promote this code.
However, in the event your particular case cannot be resolved without having the Court’s involvement, again we would specifically provide a clear cost estimate of the charges that will apply in any given case.
Pearson Solicitors also offers a flexible payment plan to enable clients to budget for anticipated legal fees.