The Law of Divorce
This section sets out the law of divorce currently in force in England and Wales. The main legislation is the Matrimonial Causes Act 1973, as amended.
There is one ground for divorce: that the marriage has broken down irretrievably.
Before a Court can grant a divorce, it has to be shown that the marriage has broken down. This is done by giving evidence in writing of any one of five Facts, as they are called. One of these Facts has to be proven.
The five facts are:
- the adultery of the other spouse
- the unreasonable behaviour of the other spouse
- two years desertion
- the couple have lived apart for two years and the other spouse consents to divorce
- the couple have lived apart for five years (no consent needed).
In excess of 70% of divorces are granted on either adultery or unreasonable behaviour. This is may be be-cause most people want to get on with the divorce rather than wait for the two year period to expire.
It is possible (but not necessarily wise) to divorce before the finances have been agreed. If there are finan-cial proceedings, or proceedings about children, they run separately.
It is not possible to divorce in the first year of marriage.
Divorce – Legal Procedures
This is a basic outline of the divorce procedure which goes through various stages.
The person who applies to the Court is the Petitioner, so called because the main document to be pre-pared and sent (filed) to the Court is the Petition.
These documents have to be in a particular format and have to state specific things.
The marriage certificate has to be sent to the Court at the same time, together with the Court fee of £410. Once the Court has checked and processed the documents (issued them) they will then send (serve) them in the post to the other party.
The other person will get the Petition and a document in question and answer format, which has to be sent back to the Court, called an Acknowledgement of Service Form. The person to whom these docu-ments are sent is called the Respondent.
It is still possible to name the other person with whom adultery has taken place – that person is called the Co-respondent. We would advise that such a course is best avoided.
The Respondent should return the Acknowledgement of Service Form to the Court within 7 days of re-ceiving the petition. Should the Respondent state that he or she wants to defend the divorce (which is unusual unless trying to delay matters, or while the issue of costs or the content of the Petition is negoti-ated) then a document called an Answer has to be filed within 28 days of receiving the Petition.
If the Respondent does not defend (which is usual) the Petitioner prepares a Statement confirming the factual content of the Petition.
This Statement and a form called an application for a Decree Nisi has then to be sent to the Court, where the documents will be checked. A date for the Decree Nisi will then be fixed.
The Decree Nisi will be pronounced by the Court on the date fixed. Neither person has to attend the Court.
The Decree Nisi is the first of two decrees of divorce. It signifies that the Fact of the divorce relied upon is proven and that the due process of law has taken place.
Six weeks and one day later, the Petitioner may apply for the second and final decree of divorce – the De-cree Absolute.
When that is granted, the divorce has taken place. There is usually no hearing. The application to the Court is made on a standard form. If the Petitioner does not apply for Decree Absolute then the Respond-ent can do so three months later. There has to be a brief hearing before a judge.
Divorce – How to Avoid the Pitfalls
The divorces that cause the most ill feeling are usually those based on unreasonable behaviour or adul-tery.
When a marriage breaks down, there will be a background of emotional upheaval anyway, but launching into the divorce process can make things even more difficult.
Statements about the other spouse’s behaviour can often be the final straw, and where children are in-volved their future wellbeing is at state – if parents can no longer talk it is they who lose out.
So here are some guidelines on to how to avoid some of the pitfalls:
- Don’t fire in a petition for divorce in the heat of the moment – it may make you feel better briefly but there will probably be a backlash, making it more not less difficult to sort out the real issues;
- If possible agree to postpone issuing proceedings; starting divorce introduces a whole range of issues that may not be so important later on – certainly when compared with all the immediate problems in the early stages;
- When the time is right, discuss who should be the Petitioner and agree the content of the Petition before it is sent to the Court – again this is something that can be dealt with in mediation or through so-licitors, in line with the RESOLUTION – Code of Practice;
- Keep the children and their welfare at the top of the agenda – send a copy of the Statement of Ar-rangements to your husband or wife so that these can be discussed and agreed beforehand;
- Where the divorce is based on adultery, do not name the third part as Co-respondent.
Here are some of the most common questions that we get asked:
- Does it matter who divorces whom?
- Which Court does it have to be in?
- Do the children automatically live with their mother?
- Is a 50/50 split the usual financial settlement?
- Should I close my joint account?
- What happens to my house if I die?
- What happens to the children if I die?
- Can I change my child’s surname?
- How can I keep legal fees down?
Does it matter who divorces whom?
There are some disadvantages in being the one who is divorced. Firstly, you may be ordered to pay the legal fees for the divorce; this may seem extremely unfair. This is based on the old principle in the Courts that if you prove your case then you get your costs, despite the fact that it is not always appropriate in the family justice system. However, if matters are agreed by both parties, it is possible to agree that the two of you will share the legal fees between you, or that the person who files the petition will not seek an order for costs against the spouse.
You may have the unpleasantness of being on the receiving end of some legal description of your private life, especially if the divorce is base on unreasonable behaviour. You are able to file an Answer to the alle-gations and try to regain control of the process by forcing a compromise on the allegations made, but most prefer to avoid complications and expense of doing so. Nevertheless, allegations made as to unrea-sonable behaviour do often upset as the contents of the Petition rarely have much to do with the real reason why the marriage broke down.
Who petitions whom rarely spills over in to other more important areas, such as the children or finance. It is worth just checking that none of the allegations in the Petition relate to dealing with the children or to financial issues, since once the divorce is granted, those allegations become a finding of fact.
The usual way of preventing such difficulties is to offer sight of the Petition to your husband or wife in draft before it is sent to the Court. Any items that cause particular upset can be discussed and either wa-tered down or left out. This is not something that every solicitor offers, but is very much in the spirit of the Resolution First Code of Practice which this Firm abides by.
Which Court does it have to be in?
If the divorce is going to take place in England and Wales, it is possible to get any County Court that has family jurisdiction.
For convenience it is usual to use your local Court. Some use a Court that is out of their area for fear of coming into contact with people they know in the local area. The
Principal Registry in London is used by many who do not live in London. For the vast majority of cases it is convenience that is the deciding fac-tor.
Practices and judicial attitudes vary from Court to Court.
Do children automatically live with their mother?
Married parents share joint parental responsibility and come before the Court as equals. The children’s welfare is the Court’s paramount consideration.
If there is a dispute as to with which parent the children should live, one or other of them must issue an application for a Residence Order. In considering which parent is best able to meet the child’s best inter-ests, the Court will apply the “welfare checklist” (s1(3) Children Act 1989).
The application of the Welfare Checklist points towards pragmatism:
- Who is the party best able to meet the child’s day to day needs?
- What has the domestic routine been in the child’s life to date?
- Even if there is little to choose between the two parents in terms of their actual parenting skills, are the work commitments of one more conducive to having primary care of the children? This last factor is often fundamental and traditionally, has tended to work in favour of mothers, but increasingly, this need not necessarily be the case.
- Even where one parent does have an Arrangement or Residence Order in his or her favour, that does not alter the fact that the other parent retains parental responsibility and has an important role to play in the child’s life. In theory at least, an Arrangement or Residence Order is not a passport to making im-portant decisions about the child’s upbringing on a unilateral basis.
- In the case of unmarried parents, the mother may have sole parental responsibility.
In the case of very young children, the Courts tend to assume they are better off living with their mother unless clearly shown to the contrary. Nevertheless, there is no presumption of law and the Courts have to consider each case on its individual merits. Although the odds may seem stacked against a father, the facts may mean that this is not necessarily the case.
Is a 50/50 split the usual settlement when deciding financial matters?
Recent reported cases concerning “big money” – where the assets available for division clearly exceed the parties’ needs – have focused on the concept of equality of outcome. This may or may not mean that the assets are divided 50/50. Contributions to the running of the home and the bringing up of children are valued equally by the Court on divorce to contributions made by economically rewarding work. There are other considerations – for example, the liquidity of the assets, any inheritances received, or particularly bad financial conduct on one side, which dictate that the outcome should not be equal. Fairness is the key – and a 50/50 split will not be fair in all cases.
Each case has to be looked at individually. It depends on the circumstances of those involved. In most cases, the financial settlement will reflect what each person needs fundamentally, money to pay all the bills and to sort out somewhere to live. Having an equal split is sometimes the starting point, but a lot of other factors have to be taken into account.
The great strength of Family law is that it is flexible enough to treat each family differently. But that does make it difficult to work out what is right for you.
Should I close my joint account?
Many couples ignore this aspect of the breakdown of their relationship and do not make any changes to their banking arrangements until financial negotiations are well advanced. There is a risk in ignoring this issue that large sums may be drawn out – or that credit or charge cards may be used inappropriately – it may be safer to take ac-tion to prevent this.
The danger is that if an account or credit card is suddenly frozen, solicitors may be involved immediately to ask for maintenance arrangements to be set up – perhaps through the Courts.
Much depends on whether you can trust each other enough to leave things as they are.
If you need to rearrange the accounts on separation we recommend that you try to agree those changes first. Think about mediation.
What happens to my house if I die?
You need to check the way in which your home is owned. If it is in your sole name, it will pass under the terms of your will or intestacy. Most homes are jointly owned either as equitable joint tenants, or as tenants-in-common. Many couples own their home as joint tenants, which mean in such a way that if one of them dies, the other owns the property outright automatically. This arrangement may still be the right one after separation – at least for the time being.
It is possible though to change the way in which you own any property jointly – so that if one of you dies then his or her share passes to their estate and is then dealt with under their Will i.e. to set up a tenancy-in-common. This is called severing the joint tenancy by giving a formal Notice of Severance to the other joint owner. We can prepare this for you. You should always take advice on this point because it may lead to claims against your estate if you die.
It may be helpful to prepare a new Will early on – even if this is only a temporary measure. The decree absolute of divorce automatically alters your Will in so far as it relates to the other spouse. It is important to consider changing your Will at that stage in any event.
What happens to the children if I die?
Where both parents have parental responsibility, in the event of the death of one, the surviving parent will retain sole parental responsibility.
The exception to this is where the parent who died had a Residence Order in his or her favour, in which case, any guardian appointed in the deceased parent’s Will will automatically assume Parental Responsibility in tandem with the surviving parent. If there is a dispute relating to with whom a child should live in the event of the death of his or her primary carer, then an application for a Residence Order needs to be made to the Court who will then deter-mine with whom the child should live.
Can I change my child’s surname?
Changing a child’s surname is obviously a very emotive step, since the surname may provide an important link to the parent with whom the child does not normally live; it may also express a preference to be known as the child of the step-parent. Neither parent, nor indeed any other person, can change a child’s surname without the written consent of every person with parental responsibility or the leave of the Court. Even in cases where the parents are unmarried, the Court has suggested that such a step should generally not be taken without either the other parent’s agreement or a Court decision.
The Court will not consider it appropriate to change a child’s surname just because it is difference to that of their half-or-step-siblings, nor even simply because the child wants it changed. The Court will not sanction a change in surname lightly; there is a presumption in favour of the status quo.
Increasingly, children may be part of a step-family in which children do not all share the same surname. It is there-fore important that any such proposal is very carefully thought through and justifiable on quite strict grounds, such as where there is no ongoing relationship whatsoever with the other biological parent and so to retain that name causes distress and confusion.
The uppermost consideration for the Court in considering whether a change of surname is appropriate is the child’s welfare and best interests. It is everything to do with the rights of the child and nothing to do with any as-serted parental rights.
How can I keep my legal fees down?
Solicitors charge for their time – the more of their time you use up, the more they cost.
- Use mediation to sort out as much as possible – we have a vital role to play even if you mediate, but you may be able to sort out a lot of issues yourselves – and certainly a lot of the financial disclosure.
- Use a check-list of things you want to ask – you will be charged for each call you make, so be sure beforehand that you know all the things you want to ask about – you will save on the additional calls.
- Keep a file (somewhere safe) of all our letters and documents in an organised format. It is important that you can keep track of the advice you have had, and you are likely to have to refer to what has been sent to you. Some of your queries may already have been answered.
- If possible discuss issues directly with your partner with a view to reaching agreement.
Keep a file of all your bank, credit card and charge card statements – and the rest of your financial information. One of the expensive tasks we may well have to do is examine your financial position; if this is in chaos you will be paying for us to prepare details of your outgoings, your mortgage and life assurance, your pensions and so on.