Family Law Frequently Asked Questions

You have to have been married for at least a year on the date you issue your application for divorce.

In April 2022 the divorce process changed to what is known as a ‘no fault’ divorce. This means you can issue a divorce petition immediately. You do not need to cite reasons such as adultery or unreasonable behaviour as was the case previously and you do not have to have been separated for any period of time. You simply have to confirm to the court that the marriage has broken down irretrievably.

There are two options, only one provides you with a formal ‘legal status’, that is judicial separation. This is in effect the same process as a divorce in that it will be considered by a Judge and financial claims can be made against the other party. Generally Judicial Separation is used by those who for religious or cultural reasons are not wishing to be divorced. The alternative is to enter into a Separation Agreement or Deed of Separation, this does not change your legal status, it is used most often by couples who do not wish to divorce immediately but wish to formalise their separation.

Usually the Separation Deed will specify a timescale within which one party will issue divorce proceedings and that the other party will consent. The separation deed can set out the financial arrangements, such as whether to sell a property, how to divide the proceeds of sale and any other assets and whether maintenance is going to be payable. Couples need to be aware however that, even if you have such an agreement and set it out in a deed, when a divorce is issued the court can still make orders about financial issues.

This is the case even of you have already reached an agreement, if for example the court does not agree that your agreement is appropriate, or, the other party changes their mind about what you agreed when you separated, the court may take into account an agreement set out in a separation deed but the court is not bound by it so you do need to think carefully about whether it is better to divorce as soon as possible.

It is invariably better for both parties if you divorce at the time you separate because it means an agreement can be made legally binding on both of you in a consent order, there is no ‘comeback’ at a later date and so it provides certainty for both parties.

You can now issue a divorce via an online portal and scanned copies of documents can be uploaded so you do not need to provide paper copies.

You may be aware that the divorce process has changed. In April 2022 what is commonly referred to as ‘no fault’ divorce was introduced.

The law has not in essence ‘changed’ in that the fundamental requirements for divorce remain which are that you must have been married for more than a year, your marriage must be a legally recognised marriage in this country and your marriage must have broken down irretrievably.

The grounds for divorce were always that the marriage has irretrievably broken down, previously however you had to ‘prove’ this in one of 5 specified ways (unreasonable behaviour, adultery, desertion and separation of 2 years, if you both consented, or 5 years if one party did not consent). Now you do not need to use any of these grounds to show the marriage has broken down irretrievably, you simply have to confirm that it has.

This can be a joint application if you wish, or a sole application by either party to the marriage.

The terminology for the formal stages of divorce have also changed but there are still 2 formal stages.

1. What used to be ‘Decree Nisi’ this is when the court has considered your divorce application and is satisfied you are entitled to a divorce. This is now known as the ‘Conditional Order’. The Conditional Order can be applied for 20 weeks after the divorce has been issued.
2. What used to Final Order’. The Final Order can be applied for, at the earliest, 6 weeks after the date of the Conditional Order.

When a relationship breaks down either party can issue divorce proceedings or you can make a joint application with your spouse if you both agree to a divorce. The advantage to issuing the application is that you retain control in so much as it is possible, over the timescales. You will be required to pay the court fee which is currently £593.

Once the ‘applicant’ has filed for divorce, (sent the application and accompanying documents to court with the £593 court fee or used the court portal) a copy of the documents is sent to the ‘respondent’. The respondent is asked to complete and return an acknowledgement of service, confirming that the documents have been received and stating whether he or she intends to defend the divorce.

Provided that the divorce is not being defended, the applicant then confirms that all the details on the documents are true and applies for the Conditional Order which is the first formal stage of divorce. The Conditional Order can only be applied for once a period of 20 weeks has passed from the date of the application for divorce being issued. A Judge then considers the paperwork and decides whether the marriage has broken down irretrievably.

When the Judge is satisfied that the grounds for divorce are made out then he or she will set a date when a ‘Conditional Order’ will be given. Six weeks after that, the applicant can apply for the Conditional Order to be made final. Once the Final Order has been granted, you are divorced (and free to remarry should you wish). It is usually not advisable to apply for the Final Order until you have resolved any financial issues arising out of the divorce however in order to ensure your financial position is protected so far as is possible.

Provided the divorce is not defended by your spouse the divorce process itself is purely a paper process which typically takes around five to six months to complete. It is dependent on the court workload to some extent and also how quickly you and your spouse deal with the necessary documentation. Negotiations over financial arrangements can often take longer than this however and although you can apply for your Final Order before you have resolved financial issues it is often advisable to wait until a financial agreement has been finalised.

You are officially divorced once the Final Order is granted. The grant of the Final Order is officially recorded (in the court where the divorce was granted and in the Principal Registry of the Family Division in London) and you are each sent a copy.

The financial arrangements can be agreed separately at any time – before you start divorce proceedings, at the same time, or after the divorce itself has been finalised – though the financial arrangements cannot be finalised until after the Conditional Order. It is usually advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the Final Order (the order finally ending your marriage) is made. This is because potential benefits such as widow’s or widower’s pensions and life insurance benefits can be lost in certain circumstances once the Final Order is granted. For this reason it is usual to allow the divorce to proceed to the Conditional Order stage but not then apply to have the Conditional Order made final until financial issues have been resolved.

The court has wide discretion when considering financial claims after divorce and there is no set formula or calculation to assist. The court will decide what happens to the assets on a case by case basis with regard to the individual circumstances, applying statute and principles which have developed though case law.

There are certain factors which the court will apply when considering an application for financial remedy. These include the age and health of the parties, length of the marriage, your standard of living, income, earning capacity, financial resources, needs, obligations and responsibilities.

If, as in many cases, the assets do not exceed the requirements of the parties and any children then “needs” will be the determining factor. The needs of the children will be given priority and the court may have to divide assets that are non-matrimonial in order to meet their needs, the court will be striving for equality and for fairness but sometimes these have to become secondary considerations because there are insufficient assets for both parties to be suitably re-housed.

If the needs of the children and each of the parties can be met, however, then other arguments will be considered such as assets having been brought into the marriage by one party alone or contributions to the family wealth due to some exceptional talent or business acumen.

Yes, once divorce proceedings have been issued either spouse can apply to the court for an order for sale. The court has the power to make various orders in respect of the family home, including:

• Transfer of the home to either spouse, with or without the mortgage;
• Sale and division of the sale proceeds (not necessarily in equal shares);
• The property to be retained by one spouse until a specified event such as a child reaching 18, perhaps with a deferred interest.

The court has to give priority to the housing needs of any dependent children however so if there are not sufficient assets to meet both of your needs, priority will be given to the parent with care of the children, to ensure that he/she is suitably housed and their day to day income needs are met. It may be therefore that the court will not allow the house to be sold and orders the parent without care to continue paying some or even all of the mortgage to make sure the children are housed appropriately.

Yes, the factors which will be considered by the court include both spouses’ contributions (including non-financial contributions such as looking after the home and children) and the financial disadvantage as a result of giving up work. The court places equal value on financial contribution through earned income and contribution by raising the children and looking after the home. The court has the power to make orders that pensions be shared in specified percentages and a pension sharing order will mean that a part of your spouse’s pension is removed from his pension and placed in a pension in your name in the same or an alternative pension scheme.

Currently, neither a pre-nuptial agreement nor a post-nuptial agreement are legally binding in a divorce court. They can however be highly influential on the court in considering how assets should be divided and likely to be upheld by a divorce court so long as specific requirements have been met such as the parties having taken independent legal advice and provided full disclosure of their assets. Regular reviews should be built into the agreement to allow for changes of circumstances such as children being born. Pre-nuptial and post-nuptial agreements are more likely to be adhered to by the court in cases where there are sufficient assets and income to meet the needs of the parties and any children.

A pre-nuptial agreement has to be drawn up in contemplation of marriage, so you have to have a date set for the wedding already and you need to have the agreement finalised as far in advance of the wedding as possible. 6 weeks is generally considered to be the absolute minimum, but ideally 4-6 months. Once you have asked a lawyer to draw up a pre-nuptial agreement it then takes time to gather all the required information and to finalise the agreement ready to be signed. So the earlier you see a lawyer the better.

If the wedding is close and you want your pre-nuptial agreement as secure as possible then you should consider also having a post-nuptial agreement drawn up after the wedding. The pre-nuptial agreement will then refer to the intention to enter into a post-nuptial agreement and provide a timescale for this to be completed.

Yes, you can enter into a post-nuptial agreement at any time.  If the agreement is drawn up properly and follows the guidance laid down regarding nuptial agreements then, although currently it is not legally binding on a divorce court, it could be highly influential and so persuade the divorce court that it is not appropriate to share these assets. Pre-nuptial and post-nuptial agreements are a complex area of law and you need to make sure you and your partner take separate expert advice from a specialist family lawyer.

No, this is not sensible. Whilst of course you are not ‘in conflict’ so arguably there is no conflict of interest for a lawyer in having both of you as clients, the guidelines on pre-nuptial agreements are that you should each have independent legal advice. So, you need a lawyer each if you want to make sure your agreement is as watertight as possible. There is no problem in you both seeing a lawyer together to discuss the agreement and what you want to have in it but only one of you should formally be the client of that lawyer.  The other should then take the draft agreement to their own lawyers to check over and advise them as to the content and implications.

No. Conduct of this nature will not have any impact on what a court will order in terms of finances. Bad behaviour by either party will only have a bearing on the financial settlement if it is very extreme and exceptional, or is of a financial nature: hiding assets for example or intentionally delaying or frustrating the court process. Judges are not influenced by how the parties have behaved towards one another when it comes to sharing out the assets but if one party has deliberately done something to try to defeat the other person’s financial claims or is not complying with court orders or the timescale set by the court then that may have an impact. Not providing full and frank financial disclosure is particularly frowned upon and the courts have been willing to overturn decisions where it has later transpired that there has been non-disclosure.

No, you do not have to reach a final agreement about arrangements for your children before you can be divorced but, in practical terms, you will need to sort out what is going to happen once you and your ex-spouse live in separate homes. Both parents share parental responsibility for the children and need to agree the arrangements for the children; where they will live and how much time they spend with the other parent. If the parents cannot agree then either parent can apply to the court to ask the court to make an order about where the children live and how much time they spend with the other parent. You will need to attend at an initial mediation information meeting first and the mediator will invite the other parent to attend mediation to try to resolve the issues but if you cannot agree then the court will make an order for such arrangements as it considers to be in the best interests of the children.

When purchasing a property it is advisable to enter into a declaration of trust which specifies the ownership of the property. If a property is owned jointly and you have not entered into a declaration of trust specifying the ownership then the starting point is that you both own the property in equal shares. However, if it can be shown that your intention at the time you made the purchase was different, or that the intention has changed over time but it is not clear exactly what your shares are, then the court can decide whatever division is fair having regard to the facts of the case. This is a complex area of law and can be very costly so you should take expert legal advice.

A claim for financial provision on behalf of a child can also be made under Schedule 1 of the Children Act 1989. The court has the power to order the transfer or settlement of property to the parent the child, or children, will be living with. Often in such cases the court will also order that the property be sold and proceeds divided equally once the children are independent.

The short answer is yes. If the house is in joint names then the other party needs your agreement, and estate agents should refuse to deal with just one party in marketing a property, but it does sometimes happen so beware! A sale can however be ordered by the court if your spouse or partner doesn’t agree. If this is necessary then it should be applied for within divorce proceedings so as to minimise costs and time and to make sure that the needs of any children are properly considered and protected.

Yes you do. In fact you probably need a lawyer more when you have an agreement about money than if you haven’t. If you and your spouse can’t agree then either of you can ask the court to make a decision. You have to issue divorce proceedings first and you will have to attend mediation at least once but if the mediator can’t help you agree then ultimately the Judge will make a decision for you.

If you have agreed what happens to the house, how other assets are to be divided and whether one of you will pay a monthly amount to help support the other then you must have this in a written consent order and have it approved by a Judge so that it is legally binding on you both and, more importantly, so that there is no ‘come back’.

Perhaps the most important part of any agreement is that it extinguishes any future claim that either of you could potentially make against each other so that you know your agreement is final and legally binding on you both. If you win the lottery, or if the other party gets into financial difficulties, your agreement remains. If you don’t have a financial consent order the future is uncertain for both of you.

Yes. In April 2022 the divorce process changed so that you no longer need to provide ‘reasons’ for the divorce, ie the adultery or unreasonable behaviour of your spouse. Since April 2022 you simply need to confirm to the court that in your view the marriage has broken down permanently or ‘irretrievably’.

No. You will however need to issue a divorce and have reached the Conditional Order stage (when the Judge agrees that you have grounds for divorce) before the court will be able to consider any financial agreement that you have reached. In the majority of cases you need to have divorce proceedings issued before you can ask the court to make any orders about financial issues.

Yes. Before you can make an application for the court to deal with finances you have to attend at least one meeting with a mediator. Many couples find that mediation is successful and it is generally much faster and less costly than discussing matters through your lawyers. If mediation doesn’t work, the family courts are set up in a way that encourages you to reach agreement and the Judge will try and help you do this but eventually there will be a ‘trial’ and the court will decide. A Judge might need to decide which of you is telling the truth if there is a factual dispute, and what should happen in your case.

They will say what assets are really worth and how they should be divided or reallocated and how much, or how little, each of you is able to provide for yourself and to what extent the other person should support you.

Primarily the court will be looking at the financial requirements of each of you, the Judge will consider what is fair of course but this can be a secondary issue if there are limited resources available. You will have heard cases of ‘being taken to the cleaners’; this is not because the law says it is right that one party takes all the assets, it is because there wasn’t enough to go around and the Judge decided one party needed it all. It is far better, and cheaper, to reach an agreement. The factors set out by law to be considered when dividing the financial resources on divorce are open to wide interpretation.

The court don’t get involved in issues relating to children unless the parents can’t agree. Questions relating to children such as where they will live and how often they see the other parent are not automatically considered by the court in divorce proceedings so if you want to see the children more often, or don’t agree they should live with the other parent, you will need to make a separate application.

No. When a relationship breaks down either of you can issue divorce proceedings. You don’t need the other party’s consent and cases where a divorce is refused by the court are extremely rare.

A co-habitation agreement, or living together agreement, as it is sometimes called, is in effect a contact between you.  As co-habiting couples are treated in a different way to married couples a co-habitation agreement can be a useful way of setting out how you intend to co-habit, who pays what and what if any assumption or expectations each of you have.  One of the benefits of a co-habitation agreement is that it can set out the situation regarding any property, whether owned by just one of you or in joint names.  The law in this area, if you separate and do not agree how to divide any property, is very complex. One of the most relevant factors is the understanding or intention of the parties at the time of acquiring, or moving into, the property.  Having a co-habitation agreement at the time you commence co-habiting that sets out clearly what your intentions are and what shares, if any, you have in the property can be invaluable in resolving any issues at a later date if you should separate.

No, this is not sensible.  Whilst of course you are not ‘in conflict’ so arguably there is no conflict of interest for a lawyer in having both of you as clients, the guidelines on such agreements are that you should each have independent legal advice. So, you need a lawyer each if you want to make sure your agreement is as watertight as possible.  There is no problem in you both seeing a lawyer together to discuss the agreement and what you want to have in it but only one of you should formally be the client of that lawyer.  The other should then take the draft agreement to their own lawyers to check over and advise them as to the content and implications.

Generally speaking a grandparent does not have any right to see or have a relationship with a grandchild. Grandparents are able to apply to the court and ask the Judge to make an order about when and how they can see their grandparent. The right to apply is not automatic however; you have to first apply to the court for permission to make an application for contact with your grandchildren. If the court grants permission for you to make an application you then have to actually make the application to court. In reality you would normally make both applications at the same time and on the same form but the court has to first consider whether to grant you permission to make the application for an order about your grandchildren. The court will be considering the connection you have, or had with the child and whether there might be any negative impact, or ‘harm’ to the child, if you are allowed to make the application. The court has to consider if you have a good arguable case, the reality is if you have not really had a relationship with your grandchild and both the child’s parents are opposed to you seeing the child then the court may consider that you do not have a reasonable prospect of success and refuse to allow you to apply to for an order making arrangements for you to see your grandchild. This can be a very sensitive area of law so you should consider using a lawyer to help you, they may be able to negotiate arrangements with the children’s parents so you do not need to make an application to court.

Court proceedings can take 6 months to a year from the time you issue the application but it varies depending on the time required for your case to be dealt with at each hearing, you are likely to have to wait longer for court hearings that are expected to take more time.

Any court order that is not complied with can be referred back to the court by an enforcement application. The court can impose punishments such as a fine on persons who do not obey the order. The court has to be satisfied that the breach of the order is wilful however and so it is not always a straightforward matter. The parents may say for example that they have not intentionally ignored the order but are unable to persuade the children to see you. The parents may make arrangements but then give reasons to change or cancel them so the contact does not actually ever take place. In those circumstances, unless the court considers that the parents have been intentionally flouting or frustrating a court order, it is unlikely the court will feel able to take any action.

Yes, the risk of harm, which is what the court will be considering when an application for an occupation order is made, can be emotional harm, it need not be a risk of, or actual, physical violence.

Yes, you can apply for an injunction ‘ex parte’ ie without giving the other party notice of your intention to do so. The court has to be satisfied that it needs to make an order to protect you because you are at risk of some harm from the other party if they knew you were making the application. The courts are generally cautious in considering a without notice application because they are of course only hearing one person’s ‘side of the story’. If the court grants an injunction they will generally make the order for a short period and allow the other party to come to court to set out their case, and defend any allegations if they wish to, as soon as possible.

It is possible in appropriate cases for the court to attach a ‘Power of Arrest’ to an injunction so that the police hold a copy of the injunction at the police station and react immediately to come and make an arrest if it is reported that an injunction has been breached. The case will them return to court for a committal hearing, the court will then hear evidence from both parties and decide if the person has broken the order. If the court decides the order has been broken then the court can impose punishment which may be a fine or a term of imprisonment.