Considering applying for a divorce? - Your Guide to Divorce

Reaching the decision to divorce will understandably be an emotional one for all concerned and it will be the beginnings of a new chapter in your life.  Knowing where to turn for the right legal advice and having knowledge of what lies ahead can help you face the coming months with certainty and stability during what can be an upsetting time.  Sam Miles, Partner in our Family Law department, explains everything you need to know here, reviewing the key questions and how we can support you.

What are the five different facts for divorce?

In order to get a divorce you have to show that the marriage has “irretrievably broken down” and this is shown by proving one of five facts:-

• Adultery
• Unreasonable behaviour
• 2 years’ separation (and both in agreement to the divorce)
• 5 years’ separation
• Desertion

You must have been married for at least one year in order to apply for a divorce. After this time, you can apply for a divorce on the basis of adultery or unreasonable behaviour. Failing that, you would need to wait for at least 2 years following separation before you are able to apply on the basis of 2 years’ separation or desertion.

What are the steps in a divorce?

There are several stages in the process of applying for a divorce, with the complexity varying depending on the grounds for your divorce, whether there is any property involved, whether you have children and whether you can reach agreements between you. 

1. The first step is for the party applying for the divorce, the petitioner, to submit the Court application  with the appropriate fee, detailing the reasons why they believe a divorce should be granted along with any supporting information. 
2. The petition is then issued by the Court and sent to the other party, the respondent, for them to respond using the “Acknowledgement of Service”.  This form confirms whether they intend to challenge the divorce or whether they are in agreement with matters proceeding.
3. If both parties are in agreement, the petitioner can then make the application for the Decree Nisi to be heard in Court. The Judge will use the facts given within the petition to make a judgement as to whether a divorce can be granted. 
4. It is at this stage that you should consider your financial arrangements as, once the Decree Nisi has been granted, it is advised that you should either submit an application for a financial order or confirm your arrangements with a consent order if financial matters can be agreed.  Financial matters are separate to divorce proceedings but it is usual for them to run alongside the divorce.
5. After six weeks and one day of the Decree Nisi being pronounced, the petitioner can apply for the Decree Absolute. The Decree Absolute will formally bring your marriage to an end.

While using a Solicitor is not a legal requirement in a divorce, we would always recommend that you seek legal advice, at least at the initial stages.  This can be particularly pertinent if you have complicated or complex financial arrangements, or you cannot agree on the arrangements that need to be made.

Is the divorce process changing in 2022?

While the process of applying for a divorce is not changing, 2022 will see a change to the grounds for divorce under the Divorce, Dissolution and Separation Act 2020. 

Under the new law:

• a couple will be able to jointly apply for a divorce based on an irretrievable breakdown of the marriage, not attributing blame to either side which is currently the case under adultery or unreasonable behaviour;
• there will be a six month time period required between the filing for divorce and it being granted;
• the terminology will be changed from “decree nisi” and “decree absolute” to “conditional order” and “final order”, with “petitioners” becoming “applicants”.

It has recently been announced that the Act will become law in April 2022, seeing the most revolutionary change to divorce law in years.  The Act is being introduced in an attempt to reduce the hostility that can arise from using adultery or unreasonable behaviour as grounds for divorce, and removes the need for a couple to wait two years to divorce based on separation alone, which can hold both parties back from starting a new life.

What are the financial considerations when divorcing?

There will be various arrangements to make for your finances which should be considered when applying for a divorce. There are four key areas for consideration, with some being considered marital assets for the purposes of the financial order:

1. Your children – when making arrangements for your children, you will need to factor this into your financial arrangements; will they be living with you or your spouse, for example?  Will you be required to pay maintenance each month?  How will your living costs be impacted? 
2. Your property – within your financial order, you will be required to disclose the details of any properties you own, jointly and independently, as well as your plans for those properties, i.e. whether you intend to buy out your spouse or whether you intend to sell and split the proceeds.
3. Your money – full details of your financial situation are needed in order for the Court to approve your financial order, with reference to your joint and individual bank accounts, savings, investments, current income, any businesses you own (which will require a separate valuation), loans, mortgages, overdrafts and your day to day living expenses.
4. Your pension – aside from your property, your pension could be one of the most valuable assets which will need to be considered in your financial order.  There are several ways a pension can be divided upon divorce; Pension Sharing Order, Pension Offsetting or a Pension Attachment Order.  Knowing the right option for you will depend on your situation, which we can advise accordingly.

Understanding how your marital and non-marital assets will be divided can be tricky, as this will be determined by your own personal circumstances and may not be a simple 50/50 split. You will need to obtain expert advice to help you understand your rights, what you are entitled to and the fairness of any settlement that may be offered to you from your spouse.

The Judge will review your application and make their decision based on a variety of factors, such as the length of your marriage, your ages, your income and the children involved.  Once the Judge has approved the financial arrangements, you can make these decisions legally binding in the form of a consent order.  This will protect your finances in the future, confirming that both parties are satisfied with the financial arrangements being put in place meaning that no claims on your future finances can be made.

Do I need to update my Will when I divorce?

Having a Will is crucial to ensure that your estate will be distributed as you see fit upon your death and if you have a Will and subsequently become divorced it is just as important that you update it.  This is particularly pertinent if you left everything to your former spouse with no further provisions as the status of your former spouse changes upon the approval of the Decree Absolute. 

Neglecting to update your Will following a divorce could lead to lengthy and costly disputes between your family members in the future.

What is Family Mediation and how could it help me with my divorce?

With so many decisions to make, it is understandable that along the way there may be disagreements between you and your spouse, whether that is regarding your children or your finances.  In this situation, it can be hard to consider your options rationally, which is how Family Mediation could help. 

The intention of Family Mediation is to allow both parties to have their opinions and perspectives heard to enable a more open conversation considering the practical consequences of any decisions that are made.  Each person will have their time and space to voice their wishes, with the Mediator facilitating the conversation to ensure neither dominates nor intimidates the other.  By creating this neutral environment, decisions can be reached that both parties are content with which they have both contributed to, without the need to go to Court and have a Judge decide the outcome.

If you are considering a divorce and have questions about the process, or you would like advice on how to proceed, you can contact Sam or the Family Law team on 023 8071 7431 or email familyenquiries@warnergoodman.co.uk.  Alternatively, you can find out more about our Fixed Fee Divorce packages on the Family law section of our website.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.