Frequently asked questions
Divorce – Frequently asked questions
Yes, the no fault regime applies equally to civil partnerships as well as marriages.
Under the previous law, you needed to show that your marriage had irretrievably broken down due to one of the following 5 facts:
- 2 years separation by consent
- 5 years separation.
The new law ends the need to blame or find fault. The divorce application simply requires you confirm that the marriage has irretrievably broken down. You can now apply by yourself or make a joint application with your spouse.
There are also much more limited grounds on which a party can object to the divorce proceedings.
The new law also introduced a minimum period of six months, so that it’s now not possible to get divorced in less than six months.
The language which is used in divorce has also changed:
- A divorce petition is now a ‘divorce application’.
- A Petitioner is now an ‘Applicant’.
- The Decree Nisi is now a ‘Conditional Order’.
- A Decree Absolute is now a ‘Final Order’.
Anyone who has been married for more than 12 months is entitled to a divorce in England and Wales can apply for no fault divorce. This means that the English and Welsh court needs to have jurisdiction to deal with your case.
Generally, you can get divorced here if you or your spouse live or are domiciled here. You don’t need British citizenship and you can get divorced in England or Wales even if you were married in another country.
No-fault divorce introduces the option for separating, amicable couples to start their divorce with a joint application. However, this is not a requirement for no-fault divorce, and sole parties are still able to complete the divorce process independently as needed.
Yes. If issuing by post, your divorce or dissolution application needs to be accompanied by either your original or an official certified copy of your marriage or civil partnership certificate. A photocopy is not sufficient.
If issuing online then you are required to submit a scanned copy or photograph, showing all four corners of the document, and to certify that this is an original or official certified copy.
Different formalities apply if you were married or entered into a civil partnership abroad. You will need to make enquires with the relevant authority and may require a translation of your marriage or civil partnership certificate.
No-fault divorces do not affect the way the Court looks at the division of assets, financial provision, or child arrangements. As no-fault divorce is far less confrontational than before, it could now be even easier to reach agreement about things connected to the divorce.
Less confrontational – No-fault divorce allows couples to obtain a divorce without the need to outline the bad behaviour or prove fault. This can make the process of obtaining a divorce less confrontational or traumatic.
Simplicity – As it is no longer necessary to prove fault, the process is now relatively simple and straightforward. Very little needs to go into the divorce application apart from your personal details, the details of the marriage and confirmation that the marriage has broken down.
It is very difficult to defend a divorce application under the new no-fault divorce laws than it was previously. Defences to divorce now involve legal technicalities rather than contesting the grounds for divorce based on the contents of the application.
More Time to Reconsider Options – Under the new no-fault divorce laws in England and Wales, there is a minimum waiting period of 20 weeks between the application being issued and being able to apply for the conditional order and a further 6 weeks and 1 day between the conditional order and Final Order. This is a longer period than under the old rules. This gives couples the opportunity for additional time to consider their options and potentially reconcile before moving forward with the divorce. This may be beneficial for couples who are not yet certain that they want to end their marriage and want to explore the possibility of reconciliation before moving forward with the divorce process.
Jointly applying for a divorce is a sensible way to say, “We have both decided to end the marriage and want to do so together.” It sets the tone for future discussions on other matters such as children and/or finances.
An alternative to getting divorced is to obtain a Separation Agreement. This essentially sets out the financial arrangements between a married couple who decide to separate but are not yet ready to divorce.
Finances arising from a relationship breakdown
No, the Divorce or dissolution only deals with the legal ending of your relationship. It does not automatically deal with financial matters. Without a legally binding financial settlement you and your ex can still make financial claims against the other even though many years may have passed.
It is simply an agreement you have reached with your former spouse/partner about how you will deal with financial matters arising from the breakdown of your relationship.
To make your agreement legally binding you need a Consent Order and ask a court to approve it.
A consent order is a legal document that confirms your financial agreement post separation. It explains how you’re going to divide up assets like pensions, property, savings, investments. It also can deal with how any debts will be dealt with and can also include arrangements for maintenance payments, including child maintenance.
A clean break Consent Order prevents any future money or assets that you may earn or receive (such as pensions, inheritance, lottery wins or earnings) from being claimed by your ex-spouse or partner.
A Consent Order is a legal document and contains specific technical legal terms that must be drafted in a certain way to give full legal effect. You do not necessarily need a Solicitor to draft a Consent Order, but you should choose someone with solid experience in drafting Consent Orders and knows the legal process. We have over 30 years in drafting and dealing with Consent Orders as legal professionals.
A family law Judge will consider the draft Consent Order and decide whether the terms of the agreement represent fair and proper financial provision for the parties considering all their circumstances?
No, the duty of the Judge is the administration of justice. Accordingly, the Judge cannot simply rubber stamp a Consent Order – their task is to exercise their discretion under Section 25 of the Matrimonial Causes Act 1973 to consider whether the terms of the agreement are fair.
To decide what is fair a Judge will consider the principles of “needs”, “sharing” and “compensation”. It is likely that fairness will be seen to suggest an equal division of all the matrimonial assets with first consideration going to any minor children and their carer.
It is important to note that although there is a process for the division of financial assets, there is no exact formula or tariff governing the division of finances upon a relationship breakdown. Courts are given a very wide discretion in determining what is a ‘fair’ outcome to a case.
These are the factors that a Judge will consider:
- The needs of any children, which will be the first consideration.
- Your financial circumstances
- Whether assets are matrimonial or non-matrimonial
- The contributions you have each made to the marriage or civil partnership, both financially and emotionally
- Your incomes and earning capacity.
- Your pensions and the extent to which these can be shared.
- Your ages
- The standard of living enjoyed during the relationship.
- The length of the marriage
- Any specific health needs or disabilities
When submitting a draft Consent Order to the Court it must be accompanied by a document called a Statement of Information for a Consent Order. This document provides the Judge of a summary of the financial situation of both parties including income, assets, and liabilities.
Spousal maintenance refers to payments made by one spouse/partner to the other before or after divorce. Spousal maintenance may be necessary when one spouse does not have the capacity to support themselves adequately going forward, because, for example, he or she receives a lower income or is currently out of work and unable to re-join the workforce.
A Form E is a financial statement used in financial proceedings which sets out your financial position. In the document you provide details about your assets, liabilities, expenditure, and income. It also sets out what you are trying to achieve in financial matters.
To be able to fairly divide the “family pot” we need to know what is in the “pot”. The Form E provides us with a very detailed financial information so we can make an informed decision on what is a fair settlement with everyone having a full understanding of the financial situation involved.
Matrimonial assets can include the following assets obtained during the marriage/partnership:
- The family home.
- Other real estate
- Cash in the bank
- Art, antiques, collections, or other items of value.
- Stocks, bonds, and mutual funds
Non-matrimonial assets are financial assets which were acquired before or after the period of marriage. Each of the examples above, if acquired outside of the marriage period, would be considered a non-matrimonial asset. They can therefore be treated differently to matrimonial assets.