The top ten questions on divorce
Once the celebrations of Christmas and New Year conclude, the beginning of the year often presents a surge in divorce enquiries.
A divorce can be a life-altering and challenging event. Here at Fosters, we understand the emotional aspects at play and are here to support you personally, as well as professionally.
Within this article, we provide answers to the top ten questions on divorce, assisting you to navigate through any complexities of the process.
Do we both have to agree to the divorce?
No – you do not both have to agree to the divorce.
Since 6th April 2022, the government introduced the concept of No-Fault Divorce. This means that you are not required to provide a reason in order to make the initial divorce application.
How long does the divorce procedure typically take?
The divorce process itself takes around six to seven months to complete.
A spouse or civil partner cannot commence divorce proceedings until one year has elapsed from the date of the marriage. This is often referred to as ‘the one-year rule’. After one year, you will then be able to apply for the initial divorce application.
After a twenty-week cooling period, you can then take steps to apply for the Conditional Order (previously known as Decree Nisi).
After a further six weeks and a day after the court has granted the Conditional Order, you can then apply for the Final Order (previously known as the Decree Absolute). Once this is obtained, you will no longer be married to your former spouse or civil partner.
Once I am divorced, do we still have financial ties to one another?
Contrary to popular belief, the answer to this question is yes.
Once you obtain a Final Order in your divorce, you are still able to make financial claims against your spouse or civil partner (including against inheritance and any pension) and vice versa. The only way to prevent this is by obtaining a financial clean break order.
Whilst the legal process for the divorce itself is usually standard, agreeing your finances can be the most challenging part of separation and divorce, and is likely to need more professional input and support.
As the divorce process takes place, you should try to reach an agreement with your spouse or civil partner about dividing your money, belongings, and property in a fair way between both of you.
What is the actual procedure for resolving the finances?
To avoid financial claims remaining open between you and your former spouse or civil partner (which can be for the rest of your life and even after death against your estate), it is essential that you attempt to agree a financial settlement, with or without the assistance of a solicitor. This agreement must then be drafted into the form of a financial order.
There are a number of ways in which you can resolve the financial side of separation.
It could be between yourselves and/or with the assistance of a specialist family lawyer or through the mediation process. If none of these options succeed or are appropriate then you may be required to apply to the court for a ‘financial order’. If so, you will need to attend a ‘Mediation, Information and Assessment Meeting’ (MIAM) with a mediator.
Why would I need to sort out my finances if there is no money involved?
Without a financial clean break order, your partner could still make a claim against your assets and income in the future. For example, if you won the lottery, inherited some money, or accrued a large pension, in theory, your former spouse or civil partner could make a claim against this even if you are officially divorced.
Will I automatically receive 50% of all matrimonial assets?
The starting point for the parties is that the assets will be divided equally.
The court must have regard to all the circumstances of the case, the first consideration being given to the welfare of any child who is under the age of eighteen.
There are several factors that the court is required to consider. For example, this includes both the parties income and capital needs. How much money would a party need to meet their housing needs? Do they have a sufficient income?
It may be appropriate for the assets to not be divided equally. For example, if one party inherited money after they had separated, or a young couple only married for a short period or where one party’s earning ability is very different from the other.
If I have moved out of the family property upon separation, does this affect my interest in the property?
Moving out of the property does not diminish or reduce any interest that you may have. However, leaving the property may make your partner less inclined to progress the matter, since they may be living comfortably in the family home.
It may also be appropriate to register a Homes Rights Notice with the HM Land Registry if a property is in the sole name of one party. The purpose of this notice is to protect your right to occupy the family home. This notice acts as a warning flag to potential purchasers, indicating that someone other than the registered owner has a right to live at the property.
If I have been treated badly by my partner, does this mean I will be entitled to more?
Only where the treatment is so severe that it would be completely unfair to ignore it. Usually this means that the behaviour in question will have a financial effect on the other party. For example, if your ex-spouse or civil partner was violent and you are less able to work or need more expensive housing as a result, a court may take this into account when dividing the assets. Behaviour such as leaving very suddenly or being unfaithful does not usually change how the assets are divided.
Does the divorce process include arrangements for the children?
The divorce and financial process does not include arrangements for the children to spend time with each party. However, you can negotiate about the arrangements for your child/children as a part of the process. If you are not able to resolve this, it may require a separate application to court for a Child Arrangements Order.
Will I be required to attend a court hearing?
If you cannot reach an agreement with your partner about the finances, you may be advised to make an application to court.
The purpose of a court application would be to ask the court to determine how the property, assets and finances should be divided between both parties.
Once you have made the initial application, the court will fix a date for the first hearing whereby a judge will give directions and decide how the application should proceed from then on. Whilst the court process is ongoing, you will still be able to negotiate with the other party and attempt to reach an agreement in the meantime.
The Family Law team are nationally recognised as experts in divorce and separation law. If you should have any legal queries about divorce and finances, please contact our Family Law team on 01603 620508 or email.
This article was produced on the 8th January 2024 by our Family & Children and Family & Mediation teams for information purposes only and should not be construed or relied upon as specific legal advice.