Divorce guide

Divorce guide

We understand that divorce or dissolution of a civil partnership can be a very stressful, confusing and painful experience. We want to help you negotiate both the emotional and legal challenges that come with a family breakdown.

This guide is for you if you are thinking about getting a divorce or dissolution of your civil partnership, or you or your partner have already taken steps to start the process. This guide will help you understand the legal process of divorce/dissolution. It will also help you find out about the different options available to you, and the support you might get along the way.

In this guide, we have used ‘ex-partner’ to mean your husband, wife or civil partner. The law is generally the same, whether you are divorcing or dissolving a civil partnership. Where there is a difference, we have explained this.

Funding legal advice

Most people will not be entitled to free or subsidised legal advice, unless there was abuse in the relationship. For this reason, some people try to handle the divorce themselves, or opt for a cheap online service. Although this may save money in the short term, failure to take professional legal advice from an experienced lawyer can cost you dearly. These effects can be felt both during the proceedings and in the future once the divorce is finished when the financial consequences can be irreparable. Consider that although you will have to fund the advice yourself in the short term, this can be weighed against the benefit of the likely sum to be received on divorce.

If costs are a major concern, we strongly recommend that our clients consider mediation. Mediation can help you to agree with your ex-partner over all matters that are disputed. This can help avoid a hearing which can save thousands in legal fees.

Have you experienced domestic abuse?

Both women and men experience domestic abuse. If you have experienced abuse, it is important to talk to your legal advisor about your options. This will include taking steps to keep you safe from further abuse. Steps can include getting an order from the Court to stop your ex partner harassing you further or coming into your home.

Men can get advice and information from the Men’s Advice Line tel. 0808 801 0327 (free from landlines and most mobiles) Monday-Friday 9am-5pm or email [email protected]

Women can get advice and information from the Rights of Women advice line – England and Wales tel. 020 7251 6577 or London call 020 7608 1137. Opening hours are on the website.

Divorce – or separate?

You may still be wondering whether you want to get a divorce or not. One option is to separate for a while to give each other some space and to help you both better understand how you feel.

There’s no need to divorce if your main concern is sorting out questions concerning the family home, finances and children. Speak to us about making a Separation Agreement instead. Be aware that the decisions you make in the agreement will be taken into account if you decide to divorce in future.

If you stay separated for two years or more, you can divorce on these grounds. This means there’s no issue of one party being to ‘blame’ on the court papers. Although the decision as to who divorces who and for what rarely makes a difference to the outcome, divorcing on the grounds of separation can feel better for both parties. However, you do need legal advice on certain matters such as your Will. We will discuss this more later.

“Have we separated?”

Just because you live together in the same house does not mean you are together as a couple. Some people can’t afford to move out straight away. The key point is whether you are living together as a couple – for example, sharing a bed, cooking for each other, shopping together, doing chores for each other or paying for things together jointly.

If you are no longer living together as a couple, you may be able to claim benefits or tax credits as a single person.

Things you need to know about divorce:

Many people have an unrealistic idea of how divorce works, influenced by television.

  • You must have been married/in a civil partnership for a year before you can divorce or apply for a dissolution.
  • The whole process takes about 4 to 6 months.
  • If you can agree everything about children, money and property, there will not need to be a hearing. Everything happens on paper.
  • Mediation can help you to reach an agreement. This is usually the cheapest and quickest way to proceed where there is anything that you and your ex partner cannot agree
  • You must have a ‘Mediation Information and Assessment Meeting’ (MIAM) meeting to consider whether mediation is appropriate, unless there has been abuse in the relationship. If you want to go to Court, you will need a form to confirm this meeting has taken
  • The law does not bias towards men or women. Either may have to pay maintenance to each other or for the children. The fact that men more often pay maintenance is only because men are still more likely to be the main breadwinner in the family. Of Britain’s working mothers, only a third assume this role.
  • There is no set formula or rule to say who gets what. It is therefore best to agree on this (with the help of a Mediator) rather than asking the Court to decide. If the Court decides, it may be that neither of you agree with the decision.
  • You cannot apply for a divorce jointly – one of you has to divorce the other (the new ‘No Fault Divorce’ is set to appear this Autumn). However, who applies will usually not affect any later court decision on how your finances and property are divided.
  • Although ‘past behaviour’ is something that the Court can look at when dividing up money or property, typically this is not what happens. The only time a Court will consider this is if the past behaviour was extremely bad or if one party is being dishonest, or trying to hide money or assets from the other.
  • Where a matter is disputed and the decision goes to Court, the costs can be very expensive – typically:

Matter in dispute involves a child: £3,000 – £8,000 + VAT

Matter in dispute involves finances: £10,000 – £20,000 + VAT

Divorce – what’s involved?

Divorce involves three main aspects:

  • Making arrangements for the children
  • Ending the marriage or civil partnership
  • Dividing up the money or property

To be able to deal with these different aspects of divorce, you will need to make a number of decisions together. These include:

Decisions about your children

  • Where will your children live?
  • How will you ensure they spend enough time with both parents?
  • How will you both pay for everything that the children need?

Although separation or divorce is never going to be easy for children, there are things you can say and do that will help to minimise the effects. Relate has a helpful guide on talking to the children about divorce and helping them to cope.

Decisions about living arrangements

  • Who will stay in the family home, and who will move out?
  • If the home will be sold (now or in the future), how will the proceeds of sale be divided?
  • If you have any pets (cats dogs etc) who will keep these?

Regarding the family home, some people decide to make both a short term agreement and one covering long term events such as your children moving out. You may decide to sell the family home once your children have left.

If the family home is in your partner’s name only, whether rented or owned, contact us for legal advice as soon as possible on how you can protect your right to stay. Keep in mind that, if you are named on the tenancy or mortgage, you are still responsible for paying the rent or mortgage legally – even if you have moved out. If you are both on the tenancy or mortgage, you are usually both ‘jointly and severally’ responsible.

If you find yourself at risk of homelessness, visit Shelter’s website or contact their advice line on 0808 800 4444. It’s open 365 days of the year from 8am – 8pm on weekdays and 8am – 5pm on weekends.

Decisions about money

  • How will you divide up your assets?
  • How you will you divide the contents of your home?
  • How will you pay the debts?
  • Will you pay maintenance to your partner? Typically this might be the case if you have been married/in a civil partnership for a long time and one of you earns substantially more than the

Divorce: practical considerations

One of the biggest questions that a couple are faced with when they go through a separation or divorce is, who will live in the family home and who will move out?

With the family finances split, you may be wondering how you can afford to live somewhere independent of your partner’s wage. If you rent your home, now may be a good time to see if there are smaller, cheaper properties in the area, or if moving to another area could save you money. If you will be the non- resident parent (the children will not usually live with you but will visit), you’ll need to think about where they will sleep when they stay over.

Contact the Council to see if you are eligible for a Council or Housing Association property. Waiting lists may be quite long as the number of properties available does not meet the demand, so you might have to find another solution in the meantime – but if you are eligible, you should put yourself on the list as soon as possible.

If you are working and have some savings, you could consider shared ownership which allows you to purchase a 25% share of a property and rent the remaining share until you can afford to buy it. This provides more security than a standard tenancy with a private landlord. You can find out more about the shared ownership scheme here.

If you and your ex partner own the family home, you’ll need to see how much is left to pay on the mortgage, and get a valuation from an estate agent. One option may be to sell the property so you

can both afford to buy a new property of your own. You’ll need to factor in the costs of the sale and the cost to purchase new properties – together with any mortgage redemption penalties. If you cannot agree on what to do with the family home, mediation can help you consider new possibilities.

Do a budget

It is helpful, when considering how joint finances will work, to prepare a budget of your current spending. Analysing bank statements for the past month can help show how much you actually spend – although you’ll need to factor in annual costs such as car insurance, car repairs you’re your MOT. Remember that when you are both living alone, you’ll get a 25% discount on Council Tax which you will have to apply for.

Check benefits entitlement

You may be entitled to benefits or tax credits. ‘Entitled to’ is a helpful benefits calculator that will identify what you could claim.

Calculate child maintenance

If you have children, use the Child maintenance calculator to work out what you need to pay or will be are entitled to. Be aware that if your ex partner decides not to pay, whilst the Child Maintenance Service will try to collect the debt for you and does have powers, it can take time to secure payments.

Cut the costs

Look for ways to reduce your bills and debts. You might for example be able to transfer some of your credit cards to a 0% card to save on interest payments. Money Saving Expert has a guide on doing a complete Money Makeover which could save you hundreds or thousands of pounds.

Increase your earnings

With the family earnings split, you may need to find ways to bring in some extra cash, whether it is working additional hours, finding a higher paid job or retraining. Money Saving Expert also has a useful guide on boosting your income.

Managing debt

If your debts are worrying you, there are plenty of places that can help. Try calling the National Debtline on 0808 808 4000 or Step Change on 0800 138 1111. Step Change also has an online tool that can provide personal debt management advice.

Going back to work

If you’ve relied on your ex partner as the main breadwinner up until now, Jobcentre Plus can advise you about the roles available to you at the moment and any financial help you might be entitled to, to help you get back into work.

Could you retrain?

If up until now you’ve been a stay at home mum or dad, this could be an opportunity to think about training for a new career. There is some information on funding and grants available for training here.

Alternatively, the UK Charity Gingerbread is specifically for single parents and can help you find out more about further education.

List your assets

It can help to make a list of your assets that you and your partner own, whether jointly or individually, together with a list of your debts. You could take this along to a mediation session and discuss how you will split the assets and debts between you.

We strongly recommend speaking to us before making any decisions about how these will be divided. We will suggest which items you should try to negotiate for and will help ensure you don’t leave anything out.

Smaller items, such as furniture, ideally should be agreed between yourselves – but again, mediation can help if you cannot agree. The

following list should help you to collect together information about your assets before seeing an advisor:

Family home:

  • How is it owned? e.g. Joint tenants or tenants in common – if tenants in common, what shares?
  • Is there a mortgage? How much is outstanding?
  • Is there a redemption penalty if you pay off the mortgage early?
  • What would the approximate cost to sell be? (legal and estate agent fees)

Other properties:

  • List any other properties you own e.g. properties you rent out for income, second homes, holiday homes, caravans etc. Collect together the same information as for ‘Family home’.

Other financial assets:

  • List any other financial assets. These might include bank and building society accounts, premium bonds, savings accounts, ISAs, shares – note down the account name and account number where

Business assets:

  • List businesses, how they are held, company accounts if available, amount held in bank account, any assets including digital assets such as websites and the approximate value of the business/assets if
  • List any intellectual property (copyrights, trademarks, patents). Vehicles:
  • List any cars, vans, motorbikes, motor homes etc
  • Is any finance outstanding? If so, how much?

Insurance policies:

  • List any life insurance policies – include these even if these have no cash in

Pensions:

  • List any pensions including who they are held with and what they are worth if
  • Include any pensions from former

Other assets:

  • List any paintings, jewellery, valuable furniture, club memberships, sports equipment, collectibles, tools etc – as before, note if any finance is outstanding on these
  • List any money loaned to others (and a note of who loaned what).
  • List any pets – cats, dogs
  • List any tax refunds that are

Debts:

  • List loans, credit cards, store cards, overdrafts and any other
  • Who are the debts owed to? In whose name are they? How much is outstanding? What is the minimum repayment?

A trained mediator can help you agree how to divide up your assets and debts.

The process: who does what?

The last thing you need to decide on is who will ‘ask’ for the divorce and what reasons will be given. This can be a rather emotional discussion as it feels like one of you is accepting more blame than the other. In reality it is something of a formality, since you cannot both ask for a divorce – one has to divorce the other.

In divorce proceedings, the person asking for the divorce is called ‘the Petitioner’ and the other person is called ‘the Respondent’.

Until ‘No Fault’ divorces are introduced, every divorce case is made on the basis that your marriage has broken down and cannot be saved, for one of five reasons.

If you can agree who will ask for the divorce and which reason you will use, this will save a lot of time and money. This is one issue that could be discussed during a mediation session. The five reasons that may be used for divorce are:

1)  Adultery

This means your husband or wife has had full sexual intercourse with a person of the opposite sex. You cannot use this reason if you found out about the adultery and then carried on living together for more than six months. This is because you have to show the court that you find it intolerable to live with them. You don’t usually need to name the other person involved. Note that the law regards ‘adultery’ as an act committed between people of the opposite sex. Given the definition of adultery, same sex couples cannot use this reason (unless the sexual intercourse was with someone of the opposite sex).

2)  Unreasonable behaviour

You can divorce someone for behaviour that you find to be unreasonable. This is subjective, so it does not matter whether or not other people find the behaviour unreasonable. Around half of all divorces use this as a reason. ‘Unreasonable behaviour’ might include, for example, watching boring television programmes, not helping with chores, working too much or socialising too much without your partner. Other behaviour that is more obviously unreasonable, such as threats, violence, insults or unkindness, would of course fall under this heading.

3)  Desertion

This reason can be used if your ex partner leaves you against your will and you have been living apart for a minimum of two years. However, since you can get a divorce based on two years separation provided that you both agree, this reason is not used very often.

4)  Two years separation

This reason can be used if you have been living apart for two years and you are both in agreement with the divorce. During the two year period, there can be up to six months where you have tried to live together again – but this won’t count towards the two years. Remember that although you both agree to the divorce, one party still has to divorce the other.

5)  Five years separation

If you are separated and your ex partner does not agree to the divorce, and you cannot use the other reasons, you can wait until you have been apart for five years then use this reason. Your ex partner can still argue that the divorce would cause gross financial or other hardship, but this doesn’t happen very often.

Defending the divorce petition

If the person who is not making the divorce petition (the Respondent) does not agree to it, they will ‘defend’ it. This doesn’t happen often as it is both expensive and futile – it would be difficult to show that your marriage or civil partnership has not broken down, when the person asking for the divorce (the Petitioner) says it has.

In some cases, the Respondent is not happy with the reasons given for the divorce. This might be because they believe the marriage broke down because of the Petitioner’s own behaviour. In this case, they can ask for a divorce too, for their own reasons. This is called a ‘cross petition’.

Really, there is very little point submitting a cross petition – even if the reasons given by the Petitioner seem unfair. It will only add to your legal expenses, and the reasons rarely have any bearing on how the money or property is divided, or on arrangements for the children. Nobody will see the divorce papers besides the people involved in the divorce so arguing about the reasons that the Petitioner has given simply adds to your legal bill.

Other legal matters

Divorce and your Will

While marriage or entering into a civil partnership can potentially revoke your Will, you may be surprised to learn that divorce or dissolution does not.

If you divorce, or your marriage is ended by a court order (such as an annulment), your Will is still valid. However, any gift made to your former spouse/civil partner is treated as if they died on the date your decree became absolute. In effect, this means the gift usually goes back into the residue of your estate. If however you left everything to them, the effect is as if you died intestate (without a Will) and your assets will be distributed according to the rules of intestacy.

Note that if you appointed your former spouse or partner as an executor or trustee, this will also be treated as if they died on the date of the decree absolute.

If you appointed them as trustee of a trust, for the benefit of the children of the marriage/partnership, the trust will fail.

Since divorce does not revoke your Will, it’s important to make a new Will on separation. There’s no need to wait until the divorce has been finalised and it would be unwise to do so, as if anything happened to you before the divorce was finalised, your assets may go to your former partner.

Separation and your Will

You may have separated from your spouse or partner to give you both the space to better understand your feelings. It can be a confusing time, and you may not yet know whether you want to reconcile or whether you would like to take things further with a divorce.

During this time, it’s important to realise that your Will is still valid and your spouse or partner could benefit from all of your assets, should anything happen to you.

Some people choose to make a short term, ‘holding’ Will while they are separated. This can then be updated in more detail once you have decided how you want to move forward. It is not important that you do not yet know exactly how the assets of the family would be distributed, should you go on to divorce.

After a divorce: changing your name

If you changed your name when you got married or entered into a civil partnership, you may wish to change it back again. You may be able to do this by showing record holders your:

  • Marriage certificate and decree absolute, or
  • Civil partnership certificate and final

Unfortunately some organisations will not change your name back without a deed poll. You can us to arrange this document for you.

“We can’t agree” – how mediation can help

Family mediation is where an independent, professionally trained mediator helps you and your ex to work out an agreement about issues you have not yet decided on.

Find out more about family mediation here.

Coping with feelings

Divorce and separation are life-changing events and can take a long time to get over – not dissimilar to a bereavement. It takes time to get used to being single, and to accept that what you thought your future would be has changed. Don’t expect this to come overnight. Most people take at least a year or two to adjust – and remember, children need time to adjust too.

There are lots of places to turn to when you feel like you are struggling and building a strong support network can really help. This might include:

  • Getting in touch with old friends
  • Asking your GP for counselling
  • Reconnecting or spending more time with your faith community, if you are religious
  • Finding out about local self-help groups
  • Taking advantage of support groups for lone parents, or divorced or separated adults (try Gingerbread)
  • Using online forums – such as Gingerbread or Wikivorce
  • Joining local interest groups to meet new people – e.g. walking, dancing, fitness, music
  • The Families Need Fathers helpline is for dads and mums, and all other members of the family affected by divorce. Call 0300 0300 363.

Get in touch

There are times when we are all faced with situations or challenges that test us to the limit. Your future may seem very uncertain right now but we can offer you a safety-net of knowing someone is in your corner when it matters most. Our expert and friendly team of family lawyers are here to help.

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