Divorce

If you are contemplating or have decided to divorce your partner then our experts can help. We offer flexible solutions to help clients through an emotionally difficult time.

Grounds to divorce

The only ground for divorce in England and Wales is that the marriage has irretrievably broken down. It must be demonstrated that a marriage has reached the point where it can no longer be saved before a divorce is allowed. You are required to prove one of the following legally defined ‘facts’ in support of your divorce:

  • Adultery – proven by an admission from the other party;
  • Unreasonable behaviour;
  • Desertion for a period of two years;
  • Two years’ separation without consent; or
  • Five years’ separation (with or without agreement to divorce).

It is worth noting that the reason for the breakdown of the marriage does not really affect how the finances in the marriage are divided. In a lot of cases, the content of the divorce petition is agreed before it is sent to the court. It is always advisable to seek the advice of a divorce solicitor before taking action. Please see our Financial Arrangement page for more information.

The divorce process: Filing the paperwork and timescales

Whilst the particulars of each divorce differ from case to case. The divorce procedure follows a process which starts with the filing of a divorce petition and ending with a Decree Absolute.

The process can take as little as four to six months. However, the pronouncement of a decree absolute may be held up if there are financial matters which need to be resolved. Your solicitor drafts, prepares and lodges the necessary paperwork with the Court.

If you would like to speak to our divorce lawyers, please feel free to contact our team of specialist divorce solicitors on 0207 242 1666.

Is adultery grounds for divorce?
Open Is adultery grounds for divorce?

To obtain a divorce in England and Wales, you must first demonstrate that your marriage has irretrievably broken down. To do this, you can use one of five facts. One of these is adultery. Read more about the grounds for divorce.

Are adultery and infidelity the same thing?
Open Are adultery and infidelity the same thing?

No. Under English law, adultery has a very specific meaning. It only refers to full sexual intercourse between a man and woman when at least one of them is married to someone else. No other kind of sexual activity constitutes adultery in this context.

Is it adultery if the infidelity is with someone of the same sex?
Open Is it adultery if the infidelity is with someone of the same sex?

No. As the law defines adultery as something that can only take place between a man and a woman, any sexual relations with a member of the same sex do not amount to adultery.

Is it adultery if you have already separated?
Open Is it adultery if you have already separated?

Yes, you must still prove that you find it intolerable to live with your husband or wife. Any sexual intercourse you have with a member of the opposite sex, irrespective of whether or not it takes place post-separation, is technically adultery until the decree absolute is finalised.

Does adultery count against me during the divorce?
Open Does adultery count against me during the divorce?

No. While many believe that the unfaithful party will be treated more harshly in court, this is simply not the case. Judges understand that marital breakdown is rarely the fault of just one party, so they do not treat people more or less harshly if they have committed adultery. It will have no impact on how the matrimonial finances will be divided. It will also have no impact on decisions regarding any children you have.

How long do I have to seek divorce after adultery?
Open How long do I have to seek divorce after adultery?

Six months. If you live with your spouse as a couple for that long (or periods which together amount to more than that) after you find out about the adultery, you cannot rely on it in order to seek a divorce.

Should I name and shame my spouse’s partner?
Open Should I name and shame my spouse’s partner?

Not a good idea. You may be tempted to do so if your partner has committed adultery. You may want to name and shame and show that person up for their part in the end of your relationship. But the whole aim of the modern divorce process is to remove the emotion. Bringing in a third party into the mix adds unnecessary complication, expense and difficulty. Judges do not like when you do it. In addition, including someone else in the proceedings adds to the cost and potentially causes delay.

How do financial divorce settlements work?
Open How do financial divorce settlements work?

The financial settlement is the agreement you reach with your former spouse regarding the division of your money, property and other assets during the divorce process. The courts will set down the details of this agreement and make it into a binding ‘financial order’. The court process which deals with financial issues is called a ‘financial remedies application’. When the family courts draw up financial settlements, they take certain key factors into consideration.

These include:

  • The arrangement for any children of the marriage.
  • The length of the marriage.
  • The specifics of each party’s finances.

Resources including income, capital and pension funds. In the vast majority of cases, the most important factor is “financial need”; in other words, need for an income, need for capital (including housing) and need for an income in retirement (pensions). Each half of the former couple will need to fill out a Form E. This is a sworn statement which sets out their future income and financial needs. Be careful to complete this accurately and carefully.

If our home was owned outright by my spouse before we married is it mine too?
Open If our home was owned outright by my spouse before we married is it mine too?

When parties separate, all the matrimonial assets will need to be identified and valued before any settlement proposals can be considered. Often the largest asset is the family home and this will likely be considered irrespective of who legally owns it. The Court has the power to make orders against matrimonial assets regardless of how they are owned and by whom. In the vast majority of cases, the value of the “matrimonial home” will be shared equally no matter who bought it and no matter who paid for it.

How long does spousal maintenance last?
Open How long does spousal maintenance last?

Despite what some people assume, spousal maintenance is not a lifelong meal ticket. It is primarily a way of meeting a person’s needs but it can also be a form of compensation.

After a long marriage, income is meant to help the spouse move on with their lives. Sometimes people have given up a career in order to bring up children and there is often no way for them to go back to their previous job after so long. As a result, they will need income. The crucial questions for the courts to consider in each family’s circumstances are: how much and for how long? In every case, the Court has a duty to try and bring an end to one party’s financial dependence upon the other and to do so as soon as possible.

If the Court does decide to make an Order for one person to pay maintenance to the other, the Court has got to consider when the person receiving that maintenance will be able to adjust to that maintenance coming to an end “without undue hardship”.

In other words, the Court must not award indefinite maintenance payments unless facts of the case require it to do so.

Sometimes people want to stop paying maintenance which has previously been agreed or ordered by a court. Be warned, though. If you stop without agreement then your wife or husband can go to court and enforce the award. So if you want to reduce the amount you pay in maintenance or stop it altogether, there are ways to do so legally. It may be possible to ‘capitalise maintenance’ for example: to pay a lump sum instead of continuing payments.

What if my partner goes bankrupt?
Open What if my partner goes bankrupt?

Sometimes people think that they can get out of their financial obligations following a divorce if they declare bankruptcy. This is simply not the case. Claims and awards stay in play even when one party is bankrupt. However, some assets may be reduced. If your partner is facing bankruptcy, seek legal advice about how to proceed as soon as possible.

Should I get divorced overseas or in the UK?
Open Should I get divorced overseas or in the UK?

This all depends. Every country approaches divorce slightly differently so it’s important to do some research about the laws of the country you’re living in. Generally, the Courts in England and Wales are known to be more generous to the financially weaker party. Getting a divorce in the UK would guarantee the process is in English. They are also timetabled and have strict disclosure requirements. Other countries may not. When getting a divorce, proceedings need to be issued quickly because normally the country where they are issued first has jurisdiction over the entire process.

Should I apply for Decree Absolute?
Open  Should I apply for Decree Absolute?

A decree absolute marks the formal end of your marriage. People often hesitate before taking this final step. They may worry about the effect it might have on their finances. Whether or not it will affect your financial settlement is the key question. It’s unlikely, but if your spouse dies between the decree nisi and decree absolute and you don’t have a financial settlement in place then you would no longer be his or her widow or widower.

As a result, you could lose out on some automatic benefits that you would have received had you still been married – for example: a widow or widower’s pension or state benefits. If you’re not going to automatically lose out on benefits, or the financial gain will outweigh any benefits lost, then there is no reason not to go ahead. But remember to seek legal advice if you’re unsure. Care must always be taken as to when to apply for decree absolute if pensions are going to be shared.

How do Court Proceedings work?
Open How do Court Proceedings work?

Sometimes there are no alternative routes. If it is not possible to agree on arrangements regarding your finances and the children, it will be necessary to go to Court.

Court proceedings are usually necessary if:

  • Your partner is not giving you all the financial information you require
  • There are complex financial issues that require  a divorce court to help you both agree upon
  • There is no other option as other out-of-court routes have previously failed to achieve a fair settlement on finances and child arrangements after divorce
  • There is domestic violence or the threat of this so you feel that you need to remain at a distance from your partner and wish to have matters conducted through solicitor
  • There is an issue of urgency to getting your case before the court. For instance, it may be to take steps to protect your children or preserve assets or it may be because there are competing jurisdictions and you need to win a race to be the first person to issue in your preferred jurisdiction.
How can we solve out of Court?
Open How can we solve out of Court?

Resolution out of court

Financial disputes and arguments about children that reach the courts can become costly and stressful compared to other solutions. Dispute resolution outside court can reduce both the time required and costs, also offering better privacy and the chance to avoid prolonged and lengthy court proceedings.

Arbitration

When both parties agree to arbitrate their financial or children disputes, they appoint a suitably qualified person to adjudicate. Both parties accept that the arbitrator’s decision will be final and binding and that, if required, they will need to apply to court for an order to give effect to it.

Mediation

Mediation is a voluntary process which the courts actively encourage. Both parties agree to meet together with a family mediator to discuss your issues in a safe and non-judgmental environment. The mediator will help you to firstly identify just what the issues are, then guide you towards finding solutions during face-to-face discussions.  The offers that are exchanged in the mediation process are “without prejudice” – i.e. they are private and cannot be reported to the Court. This is different from arbitration as the mediator cannot impose a decision on either party. The purpose is to encourage openness and a readiness to negotiate, with both parties working towards a settlement.

Collaborative family law

Both parties and their solicitors commit to reaching solutions by agreement rather than through the courts. Face-to-face communication between the parties can help to reduce costs and improve the chances of working together well in the future.

We can provide you with expert advice on all areas of family law. Therefore we can proudly say we are one of the Best Family Law Solicitors London.

Key Contacts

If you are looking for help and guidance or have a question relating to Divorce, please contact us today on +44 (0)20 7242 1666.