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Marriage in England and Wales has undergone a seismic shift in both legal and social status in recent years. The traditional definition of marriage between a man and woman has been altered with the 2014 introduction of same-sex marriage, a development preceded by the introduction of legal civil partnerships facilitating same-sex unions.
Whatever your views on such controversial issues, these legal developments widen the ambit of family and divorce law. Marriage and civil partnership may start on a strong footing but can deteriorate over a period of time to the point where either or both parties accept the relationship cannot continue. In other circumstances, a single incident such as adultery can bring the relationship to an end.
A party to a marriage or civil partnership will usually begin to contemplate divorce or dissolution only when it becomes apparent the relationship is beyond repair. The law sets out the formal legal process for ending a marriage or civil partnership.
Civil partners have the same legal rights and responsibilities as married couples. In addition, the law relating to the divorce procedure also applies to dissolution of civil partnerships. For this reason, any reference to divorce and spouses in this guide also includes dissolution of a civil partnership and civil partners (unless there are specific differences for civil partners).
Divorce invariably leads to issues relating to the division of matrimonial assets and any children of the marriage. There is an increasing trend for couples to agree financial matters before entering marriage or civil partnership by entering into pre-nuptial (or sometimes, post-nuptial) agreements to cover what should happen to their assets if the marriage later fails. For matters relating to children, see our guide.
Divorce is the legal dissolution of a marriage between spouses and is obtained by a court judgment (a decree absolute).
Dissolution is the legal term for formally ending a civil partnership between partners. Application must be made to the court for a dissolution order. You cannot apply until one year after the date of the civil partnership. Before then, you can apply for a separation order instead.
By petition to the court. The party seeking a divorce must apply to the family court for an order legally ending the marriage and the legal rights and responsibilities that go with marriage. There are three stages to obtaining a divorce:
You have the right to apply for a divorce in England and Wales if you satisfy the following:
If you do not satisfy all of these requirements, you should seek specialist legal advice. You may be able to apply for annulment (if, for instance, one party was under 16 when the marriage took place) or judicial separation (if, for instance, there is a religious objection to divorce).
A divorce petition is an application to the court for permission to divorce. It must set out details concerning the parties to the marriage, the basis on which you intend seeking a divorce and evidence to prove the marriage has broken down irretrievably.
You must provide either a marriage certificate proving you are married, or other appropriate evidence of the marriage relationship.
The law requires that you must prove the marriage has irretrievably broken down. To do this, you must satisfy the court that one or more facts prove the marriage has irretrievably broken down:
If your spouse had sex with someone else and, as a result, you cannot bear to live any longer with him or her, you can use the fact of adultery to prove the marriage has broken down. However, if you have continued to live together as husband and wife for at least six months after you found out about the adultery, you are precluded from relying on adultery.
The behaviour alleged must make it unbearable to live with the spouse. Unreasonable behaviour is subjective and it could be physical violence or verbal abuse, drug taking or alcohol abuse, or emotional abuse. Other types of behaviour may also be classed as unreasonable if it makes it unbearable for one spouse to live with the other any longer.
You can petition for divorce if you have lived apart for more than two years and both given written agreement to the divorce. If the other spouse does not agree, you will have to wait for five years’ separation (unless you can rely on one of the other facts).
You can therefore petition for divorce if you have been separated for five years, regardless of whether or not your spouse consents to the divorce.
The law requires that the separation means you no longer consider yourselves to be parties to the marriage and there is no reasonable prospect of reconciliation. You can be separated in the eyes of the law and still live in the same household. For instance, you can be living completely separate lives – yet still live under same roof.
The court will look at the living arrangements to determine whether or not you are separated for legal purposes. For instance, what are the domestic arrangements? What are the sleeping arrangements? What is your financial relationship since the marriage broke down?
The law recognises that some couples may choose to attempt reconciliation before a final decision to divorce is made. A separated couple can get back together for a single period (or a number of combined periods) of up to six months without affecting the two or five year separation period. This encourages spouses to work at their marriage if reconciliation is possible.
You can petition for divorce if your spouse has abandoned you without your agreement and without good reason. The period of desertion must be at least two years in the past two-and-a-half years. However, as in separation, you can still petition on the basis of desertion if you have lived together for up to six months during that two year period.
An annulment is a court declaration that a marriage is null and void. A marriage that does not fulfil the legal requirements is likely to be annulled. This includes bigamous marriages, marriages where one party did not consent to the marriage, or a marriage based on mistaken identity.
Most divorce petitions are uncontested. This means it is unusual for the spouse to defend the divorce, partly because it is so expensive to do so. If the spouse agrees to the divorce petition, the court will inform you there is no reason why you cannot obtain a divorce by granting a provisional decree called a decree nisi. This means the petitioner has satisfied the court as to the contents of the divorce petition and is therefore entitled to a divorce and can apply for a decree absolute.
The application for decree absolute can be made six weeks and one day after the decree nisi. This is a compulsory period allowing time for reconciliation, or for any objections to be made as to why the divorce should not go ahead.
The petitioner can apply for decree absolute following the compulsory period mentioned above. Following the application, the decree absolute (the final decree) is normally received by the spouses within 7-10 days.
If the petitioner does not apply within four and a half months after the decree nisi was granted, the respondent (the other spouse) can apply for a decree absolute. In this case, the respondent must attend court for a hearing before a district judge who will hear the application for decree absolute. There may, for instance, be a good reason why the petitioner did not apply for the decree – for instance, there are financial or other issues that need to be resolved first.
Once the decree absolute is granted by the court, the legal marriage has ended along with its inherent rights and responsibilities. This means you are free to marry again.
A decree absolute is highly likely to affect any will you and your spouse have. If there is any provision in your will benefiting your former spouse, those provisions are automatically revoked once a divorce absolute is issued. It is recommended that you review your will and consider whether it needs amending in view of your change in circumstances.
Financial matters invariably arise on the breakdown of a marriage or civil partnership. Sometimes, there is just one asset – the family home – while other cases can be extremely complex with many financial and other assets. If there are children, resolving financial matters also involves their consideration. The issue of spousal maintenance may also arise.
All property and assets of the parties to the marriage must be included for consideration in the financial distribution. This includes cash, investments, shares, property, trusts, family business interests, pensions, and so on. In some instances, property or assets may be effectively ‘ring fenced’, for example, an inheritance received by one of the parties just before the parties separated. Debts and other liabilities of the parties must also be taken into account.
The fact that contributions have been made by a party during the marriage is generally not considered. For instance, if one party has gone to work to earn the family income, and the other has raised children or looked after the home, the fact that one party has earned an income and the other has not is of no consequence. The respective contributions of each party are effectively treated equally.
The parties are free to come to an agreement as to how to fairly divide the assets. However, it is advisable to ask the court to approve the agreement by way of a financial order to ensure both parties are legally bound by the terms.
Where the court is asked to make a financial order, it will take into account various matters including, for instance, the future needs of the parties. The assets are effectively put into a ‘pot’ and an order will be made reflecting the needs of the parties. If there are no children, the court may order a ‘clean break’ which effectively ends all financial ties between the spouses. It will only be appropriate where both parties, upon financial settlement, will be self-sufficient.
If the court is asked to decide financial matters, it must take specific issues into account when assessing the assets and liabilities of the parties. These include:
The fact that the court can consider all the circumstances of the case means it can consider any other relevant factor in determining a fair financial settlement. If, for instance, the relationship was lengthy, it is more likely that the court will order an equal split of the assets. The court’s final decision as to a fair financial settlement is binding on all parties.
Both parties are legally required to give full and frank financial disclosure of all their assets and liabilities. You must tell the truth concerning every aspect. If the other side has reason to believe you are hiding something, it can result in costly and time-consuming applications to court to order full disclosure. If either party is found to be economical with the truth, this is a factor that can result in a lower financial award in that party’s favour.
One party may be required to pay maintenance (previously known as periodical payments) to the other spouse in future. This may be for a specific time period or indefinitely. It is usually paid monthly, and can be expressed in a court order to terminate on a fixed event, such as when the youngest child reaches 18 or ceases full time education, or on the death or remarriage of the party receiving spousal maintenance.
Spousal maintenance is usually payable where one party requires financial support, the other party has the means to provide the required financial support and it would be proper in all the circumstances of the case that financial support is provided by one party to the other. For example: one spouse may have been the sole earner for many years and the other has little means to support him or herself as a result of the separation or divorce; or, there are insufficient property assets to ensure a fair division without an order for spousal maintenance to help financially support the other party.
The amount of spousal maintenance can be agreed between the parties or paid following an order of the court. However, it is important to note that spousal maintenance is a complex issue and is dealt with by the courts very subjectively. It is advisable to take expert legal advice in the event spousal maintenance becomes an issue.
The existence of a pre-nuptial agreement can have a major impact on separation and divorce. A pre-nuptial agreement is entered into before marriage and sets out how the parties envisage financial and other matters to be dealt with in the event of separation and divorce. Discussing these matters when you are about to marry may seem unromantic and even unnecessary, but it can save time, expense and heartache further down the line. A pre-civil partnership agreement may be entered into before a civil partnership takes place.
Pre-nuptial and pre-civil partnership agreements are not legally binding in the UK. However, the courts will give effect to them if they are freely entered into by the parties with full knowledge and appreciation of the implications of the agreement unless the court decides it would be unfair to uphold their terms.
The court will consider what is fair in all the circumstances of the case, including the respective bargaining power of the parties and the implications on all parties, including any children of the marriage. In 2010, the UK’s Supreme Court gave useful guidance on what is to be considered fair:
A court may not decide the whole of an agreement is unfair and might make a financial order that varies some but not all of the terms of the agreement. In considering a pre-nuptial agreement and what would be a fair order in the circumstances, the court will consider factors including:
A post-nuptial (or post-civil partnership) agreement is similar to a pre-nuptial agreement but entered into after the spouses (or civil partners) have married but before a marriage or civil partnership breakdown.
A separation agreement is useful if you and your spouse have agreed a financial distribution of your assets, you intend to stop living together but you do not intend to divorce immediately. It should cover any agreement about an eventual divorce and provide that the separation deed will be translated into a consent order on divorce. Cohabitees can also enter into a separation agreement if they separate.
Typically, a separation agreement will cover property, maintenance and arrangements in relation to any children. For example, it may set out who the children are to live with, when they will stay with the non-resident parent, financial support for one party, what is to happen to the former matrimonial home, and how other money and possessions will be divided up.
A separation agreement can avoid involving the courts at a later stage. This means one of the distinct advantages is that it saves legal costs. However, the courts can alter the terms of a separation agreement if one of the parties asks the court to do so.
Anyone considering a separation agreement must ensure they give full and frank disclosure to his or her partner of any assets and liabilities they have, including documentary evidence in support. The agreement should be properly signed and the parties should seek independent legal advice on the implications of the agreement and its terms.
It is possible to apply to the court for a judge to approve the terms of the separation agreement. If the court is satisfied that its terms are fair and reasonable, it will seal an order in those terms.
It is beneficial for separating couples to remain on good terms and agree upon separation and divorce without going to court. If they cannot agree, ‘mediation’ may be an option. If they decide against mediation, or mediation is unsuccessful, they will have to go to court.
Mediation seeks to help spouses resolve the terms of their separation without resorting to the courts. It is compulsory for separating couples to attend mediation awareness sessions before going to court. A couple planning to contest the terms of their separation agreement must attend one session to find out what mediation has to offer. At the meeting, a mediator will explain the process to the couple – either individually or together. There are certain exemptions to this, including cases where there are allegations of domestic abuse or there are child protection issues.
If the mediator, or either spouse, does not feel mediation is for them, the case will continue to court – but evidence must be shown that they attended the mediation awareness session.
Mediation, and other forms of non-confrontational resolutions to family breakdown, are increasingly popular. Resolution, a national organisation made up of 6,500 family lawyers and other professionals, helps provide a constructive, non-confrontational approach to family law matters. It has its own code which requires lawyers, for instance, to encourage their clients to put their differences aside and reach fair agreements before going to court.
Litigation is very expensive, time-consuming and can go on for years. Litigation should therefore be a last resort. If it becomes necessary to ask the court to resolve matters relating to financial matters on divorce, the court process essentially involves the following steps:
It is possible to settle at any stage during the litigation process.
The parties are legally bound to comply with the terms of the final order. Failure to comply will lead to penalties and sanctions which can prove costly.
For detailed information about the court process on divorce and financial remedies, and the costs involved, seek specialist legal advice.
Typically, a divorce will take four to five months from the date of the petition until the date a decree absolute is issued. If each party is keen for a quick divorce, and cooperates, it can take less time. Conversely, if the divorce is contested or there are complications (for instance, there are jurisdictional issues or assets abroad), it can take longer.
If a financial dispute goes to a final hearing, it can take at least nine months – and significantly longer (sometimes years) if the case is complex.
We have already mentioned that divorce, particularly if financial matters need to be dealt with through the courts, can be very expensive. There is no legal aid available for divorce or financial remedies, except in very limited circumstances. Legal fees and costs can include lawyers’ fees, court fees, expenses including the cost of hiring a barrister, obtaining expert reports in support of a case and valuation fees.
Some solicitors charge an hourly rate while others offer fixed fees. If you consult a solicitor, make sure you are clear on the method of charging and what costs and expenses are likely to arise during the matter.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.
If you need to find one of the best divorce law solicitors in England & Wales for you, we have produced a series of local family law advice guides covering cities such as Liverpool, Cardiff (Wales) with more to follow.
If you live in Scotland, see also our guide to finding the best family lawyer in Aberdeen based on ratings, reviews & trust.