frequently asked questions

Family Law and Divorce Information and Frequently Asked Questions

If you are looking for a UK Divorce Solicitor then JMS is here to help you. Our team of solicitors are here to advise you on all aspects of family law and divorce proceedings. Further information about issues relating to divorce and separation can be found below.

Divorce and Separation Agreements
Fixed Fee Divorce Options
Financial Division of Assets
Pre-Marital and Pre-Civil Partnership Agreements
Children
Civil Partnership
Cohabitation
Domestic Violence
Mediation
Legal Aid
Court of Protection
Lasting Power of Attorney (LPA)

Divorce and Separation Agreements

You can only start divorce proceedings if you have been married for 1 year or more.

Prior to obtaining a divorce in the UK, it is necessary to prove that the marriage has irretrievably broken down. There are five grounds for divorce that would need to be proved to demonstrate an 'irretrievable breakdown':

1. You have lived apart for two years and you both agree to a divorce
2. You have lived apart for five years or more - a divorce can be granted whether your husband or wife agrees to it or not.
3. Your husband or wife has deserted you for a period of two years or more.
4. Your husband or wife has committed adultery
5. Your husband or wife has behaved in such a manner that you cannot reasonably be expected to live with them

Divorce Procedure

The divorce procedure can be straightforward and usually there is no attendance required at court by you, your spouse or by your divorce solicitor. The process can vary in length of time and is dependent on such factors as the divorce being amicable or not defended. Therefore it can take approximately four to six months from beginning to end, although in most cases it can take nearer to 12 months as often financial aspects of the divorce may prolong the process.

 

Nearly all of the steps in the divorce are dealt with by the person who starts the divorce process, known as the Petitioner. The other person, the Respondent takes very few steps.

 

The procedure:

ONE YEAR PLUS OF MARRIAGE
Either spouse may begin Divorce Proceedings and is known as the Petitioner. The Petitioner will file:
1) Divorce Petition.
2) Statement of Arrangements for Children
3) Marriage Certificate.
4) Court Fee of £300 or a Fee Exemption Certificate.
 

A FEW DAYS AFTER SENDING THE DIVORCE PETITION TO THE COURT
The Court will send a copy of the Divorce Petition and Statement of Arrangements to the other spouse known as the Respondent together with an Acknowledgement of Service. A copy of the Divorce Petition is also sent to anyone named in an Adultery Petition, known as the Co-Respondent. If either the Respondent or the Co-Respondent has instructed solicitors and the Petitioner is aware of it, their details can be included in the Divorce Petition and the documents can be sent to them.

The court will also send a copy to the Petitioner confirming when it was sent to the Respondent,

From the date the documents are received the Respondent has strict time limits to observe:

1) WITHIN 7 DAYS (IF THE RESPONDENT LIVES IN THE UK)
He/she should send to the Court the Acknowledgement of Service which accompanied the Divorce Petition. The Respondent is required to confirm:
a) Where and when he/she received the Divorce Petition.
b) In which country he/she is domiciled and resides.
c) Whether he/she intends to defend the Divorce Petition.
d) Whether any claim for costs is disputed.
e) Whether orders affecting the children are sought.

2) WITHIN 29 DAYS OF RECEIPT (LONGER IF THE DOCUMENTS HAVE TO BE SENT TO AN ADDRESS ABROAD)
Whether or not the Respondent has filed an Acknowledgement of Service, the Respondent must, if he or she intends to defend the Divorce Petition, file a Defence in the form of an Answer. The Divorce Petition then becomes defended and the procedure outlined below does not apply. Defended Divorce Proceedings resulting in a fully contested hearing are rare. However, a delay in finalising the divorce is inevitable.
 

WITHIN A FEW DAYS OF RECEIVING THE ACKNOWLEDGEMENT OF SERVICE FROM THE RESPONDENT (AND CO-RESPONDENT)
The Court forwards a copy of the Acknowledgement of Service to the Petitioner’s solicitor.

IF THE RESPONDENT IS NOT DEFENDING THE DIVORCE PETITION THE PETITIONER CAN APPLY FOR THE DECREE NISI TO BE PRONOUNCED
This is known as applying for directions for trial under the special procedure
The Petitioner’s solicitor prepares an Affidavit for the Petitioner to swear confirming that the contents of the Divorce Petition are true. It will also state whether any circumstances (including those relating to the children) have changed since the Divorce Petition was filed. The Petitioner will swear the Affidavit before another solicitor or Court Official and it will then be sent to the Court with the request for a date for the first decree of divorce the DECREE NISI to be pronounced.

WHAT DO I DO IF ACKNOWLEDGEMENTS OF SERVICE ARE NOT RETURNED TO THE COURT ?
Proof that the Respondent and any named Co-Respondent have received the Divorce Petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for someone to deliver the Divorce Petition to the Respondent in person and any named Co-Respondent, or, obtaining a Court Order that proof does not need to be given and that the Respondent and Co-Respondent have received the Petition. This is called dispensing with service.

ON RECEIPT BY THE COURT OF THE APPLICATION FOR A DATE FOR PRONOUNCEMENT OF THE DECREE NISI AND AFFIDAVIT
The District Judge will consider whether or not the reasons for the divorce have been proven, and if he decides that they have he will give a certificate for the DECREE NISI to be pronounced. Both the Petitioner and the Respondent (through their solicitors) are then advised of the date fixed for DECREE NISI. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. Neither party needs to attend court; the evidence is filed in the sworn statement. This procedure is sometimes called a quickie divorce.
The DECREE NISI does not end the marriage but does enable the court to make final orders in matters relating to the finances.

WHAT NORMALLY HAPPENS WITH REGARD TO THE CHILDREN?
If agreement has been reached, the District Judge is unlikely to interfere.
If agreement has not been reached, the District Judge may ask the Petitioner and the Respondent (accompanied by their solicitors) to attend an informal appointment to resolve matters. The District Judge may also ask for a Children and Family Court Advisory and Support Service Reporter (CAFCASS Reporter) to become involved. If a solution cannot be reached, this will delay the application for the final decree of divorce.
If the arrangements in relation to the children are settled between their parents
a) 6 WEEKS AND I DAY AFTER THE DATE OF THE DECREE NISI
The Petitioner may apply for the final decree the DECREE ABSOLUTE by sending the Notice of Application and fee of £40.00 to the Court. This step is not automatic. The DECREE ABSOLUTE will be processed and may be available as quickly as the next day.
As explained in DIVORCE PROCEDURE there are sometimes advantages in delaying the final decree until all financial issues have been sorted out.
b) 3 MONTHS AFTER THE PETITIONER COULD HAVE FIRST APPLIED DECREE ABSOLUTE
The Respondent may apply for the Decree Absolute if the Petitioner has not already done so, the fee is £40.00.
It is the DECREE ABSOLUTE which formally ends the marriage, only then are you free to marry again!

HOW LONG DOES IT NORMALLY TAKE?
An undefended divorce takes about 3 to 4 months from the filing of the DIVORCE PETITION to the pronouncement of the DECREE NISI.
 

Glossary of Terms

Divorce Petition - this document is issued with the court to start the court proceedings.

Marriage Certificate - needs to be the original

Statement of Arrangements for Children (D8A) under 16 (or under 18 if they are at school, college or training for a trade, profession or vocation) will detail such agreements as where the children will live, their education, childcare, maintenance and contact arrangements.

Acknowledgement of Service - the Respondent will be served the divorce petition and the other documents, i.e. Statement of Arrangements for Children. The Respondent then completes the form called the Acknowledgement of Service which confirms that they are in receipt of the petition.

Decree Nisi - the Petitioner can apply for the Decree Nisi of Divorce. The Petitioner must swear an Affidavit confirming the petition contents under oath. The affidavit accompanies an application to the Court for decree nisi. Decree nisi is pronounced in open Court.  

Decree Absolute - the Decree Absolute is the final decree of the divorce. 

Separation Agreement is a written agreement entered into by the parties recording the financial agreement that they have reached. There is no requirement to formally record the financial terms however it can give both spouses a degree of protection and certainty if that agreement is recorded in a legal document.

The Courts will normally uphold a Separation Agreement however it could be set aside if there had been a significant change in one party's circumstances. It is important for both parties to obtain independent legal advice to avoid a claim by one party that he/she was forced to accept unfair terms.

This straightforward agreement deals with financial matters such as lump sum payments and maintenance payments for the spouse and any children. You may also wish to include arrangements for the sale of the house and timetable for divorce.

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Fixed Fee Divorce Options

The following divorce packages are only suitable if your divorce is uncontested. Prices quoted include VAT but exclude all Court fees. (Current Court fees are standard across England and Wales) Court fees for filing a divorce petition is £300 and application for a decree absolute is £40.

Couples with/without children NO financial and/or property matters to formalise

Fixed Fee: £950

Drafting issuing and filing of all necessary documents:

1. Divorce Petition
2. Statement of Arrangements as to Children*(if applicable)
3. Application to dispense with service (if necessary)
4. Organisation of service by process server and related documentation (if necessary)
5. Affidavit in Support of Petition
6. Application for Decree Nisi
7. Application for Decree Absolute
8. Endorsement of Form D180 from Court for residents of EU countries outside the UK
9. All correspondence with Courts and/or your Spouse
10. Email and telephone communication

Couples with/without Children WITH financial and/or property matters to formalise

Fixed Fee: £1,900

Drafting issuing and filing of all necessary documents:

1. Divorce Petition
2. Statement of Arrangements as to Children*(if applicable)
3. Application to dispense with service (if necessary)
4. Organisation of service by process server and related documentation (if necessary)
5. Affidavit in Support of Petition
6. Application for Decree Nisi
7. Application for Decree Absolute
8. Endorsement of Form D180 from Court for residents of EU countries outside the UK
9. Application of Financial Consent Order
10. Statement of Information
11. Application for Ancillary Relief
12. Financial Consent Order
13. All correspondence with Courts and/or your Spouse
14. Email and telephone communication

Couples with/without Children who are already in the process of a divorce and wish to attach a Financial Consent Order to the proceedings

Fixed Fee: £950

Drafting issuing and filing of all necessary documents:

1. Application for Financial Consent Order
2. Statement of Information
3. Financial Consent Order
4. All correspondence with the Courts and/or your Spouse
5. Email and telephone communication

*Outside of Statement of Arrangements as to Children, where there is a dispute as to who has custody of the Children we can offer Reidential Orders Applications Service within the UK for £3500.00 plus VAT and Court Fees or cross borders(outside the UK) for £5000.00 plus VAT and Court Fees.

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Financial Division of Assets – following marriage breakdown

The court will always put the welfare of any children of the marriage first. Once these needs have been addressed, it will then consider the following:

1. The financial state of the parties
2. Future financial needs
3. Each party’s contributions throughout the marriage
4. Any lost financial opportunity arising from the divorce (i.e. if one party has to give up work to look after the children)
5. How long the marriage lasted
6. Conduct of the parties. This will only be considered if that party has behaved with extreme violence or if there has been financial misconduct.

Our role at JMS is to ensure that the settlement negotiations are as fair and as quick as possible. Full court proceedings will only be issued if it will help us to reach a suitable agreement.

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Pre-Marital and Pre-Civil Partnership Agreements

The role of the ‘Pre-Marital' or 'Pre-Civil Partnership Agreement' is growing, although courts will rarely be bound by them. They are quite often useful in encouraging a spouse to accept a pre-agreed settlement. Courts will be guided by the content of the agreement, but can choose not to follow it. Where you have a pre-marital or pre-civil partnership agreement we recommend taking our legal advice to establish whether it would be likely to be upheld in a court of law.

Where both parties agree to be bound by the Agreement

If both parties are willing to be bound by the pre-marital or pre-civil partnership agreement, we advise that a copy of the agreement should be submitted to the court – and the court can then make a court order confirming the agreement. The court will only approve the agreement if:

1. both parties received legal advice when the agreement was made
2. The agreement is fair to both parties
3. There have been no significant changes in circumstances since the agreement was made.

Where one party does not wish to be bound by the Agreement

If one party does not wish to be bound by the agreement they can still often get out of it, for instance if there have been changes in circumstances since the agreement was made.

In short, a pre-marital or pre-civil partnership agreement is a useful tool to help the negotiation process, but the courts will always retain their discretion to divide the family assets as it sees fit, and not in accordance with an agreement that may have been made many years before.

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Children

Marriage breakdown can be a traumatic and difficult time for any children in the marriage. At JMS we aim to help you minimise the damaging effect that litigation can have on the children and on family relationships in general, using negotiation and agreement wherever possible.

The court will always put the welfare of the children first when considering the following:

1. Residence and contact orders
2. Specific issue orders - such as one parent wanting to move to a new area/change the child’s school
3. Prohibited steps – such as stopping one party from taking the child out of the country
4. Granting permission for one party to take a child out of the country to live abroad, such as when that party has a new career abroad.

A voluntary agreement is usually the best solution – this can be drafted by JMS Solicitors with the help of trained mediators. Where possible, mediation is a quicker and cheaper solution for all concerned, meaning that lines of communication are kept open between the parties, and often costly court cases can be avoided. Once an agreement is reached, the court can then make a court order confirming the terms of the agreement. Our role is to advise throughout and to ensure that the agreement is made in the best possible terms.

A Conciliation Hearing is another option – this is non-adversarial and is a court hearing that aims to bring about a voluntary agreement between the parties.

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Civil Partnership

Same sex couples may now register their partnership, and as such acquire rights and responsibilities that are similar to those of a married couple.

The civil partnership can only be dissolved by court process on the grounds of irretrievable breakdown. The grounds for dissolving the partnership are the same as for divorce, apart from ‘adultery’. Adultery is a term which refers only to heterosexual sex, and as such cannot be used to dissolve a same-sex relationship. If a partner is unfaithful, the ground for dissolving the relationship would most likely be that of unreasonable behaviour.

Rights

If you are in a civil partnership you have rights to claim maintenance, lump sum payments, property transfer, pension sharing, and pension attachment, should the partnership break up.

You can also acquire parental responsibility for your civil partner’s child, by agreement, or by court order, and once you have parental responsibility or the court’s permission, you can apply for residence or contact.

To summarise, civil partners are treated as married couples for the purposes of entitlement to welfare benefits.

Agreements

You can enter into a civil partnership agreement that is the equivalent of an engagement, and which entitles you to make a claim if the relationship fails – so long as any claim is made within 3 years of the end of the agreement.

There is also a pre civil partnership agreement, which is like a pre-nuptial agreement, setting out what the parties would want to happen if the partnership broke down. At present the court can choose whether to honour the agreement (as with a pre-nuptial agreement) but it is a good tool from which to negotiate settlement.

Wills

As with marriage, any Will you have made prior to a civil partnership is automatically revoked upon registration of the civil partnership.

Civil partners automatically inherit under the intestacy rules

Transfers between civil partners are exempt from inheritance tax

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Cohabitation

Cohabitants have very few rights, contrary to popular belief.

Where your partner owns the property:

You have no automatic right to a share in that property, you would need to show that:

1. You contributed to the purchase of the property
2. That you and your partner agreed you would have a share in the property
3. That you made financial contributions
4. Your partner promised you a share in the property and that you acted on that basis.

It can be difficult, costly, and time consuming to prove your entitlement.

Where you own the property jointly

If you own the property as ‘joint tenants’ you own half each, and nothing paid or done throughout the ownership will affect this.

If you own the property as ‘tenants in common’ then the size of your share should have been specified (i.e. 40%-60%).

Your solicitor will have advised you on these two options when you bought your property, and you can ask us to check the title deeds to see how you own your property.

You can enter into a cohabitation contract, which would usually be enforceable in the event of a separation.

Cohabitees with Children

If a father is registered on the birth certificate after 1st December 2003 he will automatically have parental responsibility, otherwise he needs the formal written agreement of the mother or a court order.

If you are the main carer for the children you can make financial claims on behalf of the children (under Schedule 1 of the Children Act 1989). You and the children may be able to remain in the house for as long as the children are dependent, regardless of who owns the property. Alternatively, the court can make orders for lump sums to provide for housing or other specific needs of the children.

The court would assess the needs of the children and act in their best interests. Often you would have to repay the capital once the children reach 18 or finish their education.

You can also apply to the Child Support Agency, in some cases through the court, for child support.

What if your partner dies without making a Will?

1. you are not entitled to any part of their estate, unless you own the property as joint tenants.
2. If you own the property as tenants in common, your partner’s share will pass to their next of kin (spouse if they never divorced, or children, for instance).
3. If you are not a co owner of the property you may have to make a claim against your partner’s estate, citing the fact that you lived together for x years, made contributions to the mortgage, or where wholly or partially dependent on them. This can be difficult, time-consuming and costly.

For further details about making a Will please visit the Wills and Probate section of our website.

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Domestic violence, residence and contact orders

Domestic violence is physical, sexual violence and can include psychological or financial controlling behavior which is abusive which takes place in an intimate or family relationship.

If you are in immediate danger, call 999 for the police. If you do not require urgent assistance contact the police. Their Domestic Violence Unit can give you general advise or you may wish to contact the 24 hour National Domestic Violence Helpline Freephone 0808 2000 247 or Mens Advice Line 0808 801 0327.

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Mediation

It is not reconciliation, therapy or counselling. It is a way of resolving problems through discussion and negotiation in the presence of an impartial and professional mediator.

You may need to discuss arrangements for your children, decide whether the family home or other assets should be sold and how they should be shared between you.

You decide what needs to be discussed with your partner and the mediator manages the meetings and provides you with information to assist you in reaching fair solutions.

It is an alternative to costly and lengthy court proceedings and leaves you in control of your own affairs.

JMS continues to work successfully with Cheshire Mediation who provide a very personal and approachable service.

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Legal Aid

Regrettably JMS is unable to offer legal services under the Legal Aid Scheme. For more information about Legal Aid and whether you qualify, visit the Government website www.legalservices.gov.uk

Court of Protection

Court of Protection makes decisions in relation to property and affairs, healthcare and personal welfare of adults and children who lack capacity. It can also make declarations about whether someone has the capacity to make a particular decision.

The Court of Protection has powers to:

1. Decide whether a person has a capacity to make a particular decision
2. Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
3. Appoint deputies to make decisions
4. Decide whether an Lasting Power of Attorney (LPA) or Enduring Power of Attorney(EPA) is valid
5. Remove deputies or attorneys who fail to carry out their duties
6. Hear cases concerning objections to register an LPA or EPA and make decisions about whether or not an LPA or EPA is valid

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Lasting Power of Attorney (LPA)

LPA is a legal document appointing a trusted person as an 'attorney' to mak decisions on your behalf

This can be drawn up at any time while you have capacity (are still mentally capable). An LPA must be registered at the Office of Public Guardian if it is to have a legal standing.

There are two types of LPA:

1. Property and Affairs LPA
2. Personal Welfare LPA

Property and Affairs LPA

A Property and Affairs LPA allows you to choose someone to make decisions about how you spend your money. This can include the management of property and affairs.

Personal Welfare LPA

A Personal Welfare LPA allows you to choose someone to make decisions about your healthcare and welfare. This includes decisions to refuse or consent to treatment on your behalf and deciding where you live.

Enduring Power of Attorney (EPA) was replaced by LPA on 1st October, 2007. A person given power under an EPA before 1st October, 2007 can still use it and apply to have it registered.

Our fees for Lasting Power of Attorney are:

• £180 plus VAT per person - To complete the registration documents for either a Properties and Affairs LPA or a Personal Welfare LPA
• £320 plus VAT per person if both financial LPA and personal health LPA is required
• £250 plus VAT for registration with Court of Protection
• £120 Court Fee for each type of application
• £25 plus VAT for a copy of the LPA

For any further information about divorce, family law and the services that JMS provide please call us on Freephone 0800 781 7057.

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