A Guide to Divorce

Going through a divorce is a stressful time. You may be feeling uncertain, under pressure, and unsure about your options. We’re here to help with our guide to divorce, answering some of the most common questions about the divorce process and giving you some much-needed peace of mind at this challenging time.

What is divorce?

Divorce is the legal and permanent ending of a marriage.

Divorce only applies to marriage. If you are in a civil partnership, you can end this through the process of dissolution.

Click here to read more about divorce vs dissolution.

What is no fault divorce?

On 6th April 2022, new legislation came into force in the UK, meaning that couples no longer need to cite blame in any divorce case. This is “no fault divorce”. The only ground for divorce is that there must be an irretrievable breakdown of the marriage. You do not need to provide any proof of the breakdown in your relationship.

How to get a divorce: first steps

To get a divorce, you must have been married for at least one year, and your marriage must be legally recognised in the UK.

The divorce can be started by one person (a sole application) or by both people (a joint application). The parties are called Applicant and Respondent if it is a sole application. If the application is joint, the parties are called Applicant 1 and Applicant 2.

Once the court receives the application, they will check all the documents. If they are correct, they will officially issue the application for divorce and send a copy to the Respondent or to both Applicants in a joint application. The Respondent in a sole application will need to fill out the Acknowledgement of Service. Many cases are completed digitally, and documents can be sent by email or uploaded.

Twenty weeks after the application is issued by the court, an Applicant can apply for the Conditional Order. This was previously called Decree Nisi and is an interim stage. It is an important stage because it is only once the Conditional Order has been made that a court can make a Financial Order, even where by consent.

The Applicant can then apply for the Final Order, previously called Decree Absolute, six weeks and one day after the Conditional Order.

You are officially divorced once the Final Order has been granted and sealed.

Can a divorce be disputed?

With no fault divorce, there are very limited defences, and divorce can only be disputed on specific grounds, such as disputes about validity of the marriage, arguments that England and Wales is not the appropriate forum, or perhaps a claim that the marriage has already been ended. It cannot be defended on the basis that one person disagrees that the marriage has broken down or considers themselves blameless.

Does it matter who files for divorce first?

In most cases, no, it doesn’t impact the outcome of the divorce legally and financially, especially now most divorces are now filed for with Joint Applications.

if you are making a Sole Application, the Applicant has slightly more control over the divorce proceedings, as they are the only one who can apply for the conditional order. This may impact you if you are yet to reach an agreement on financial matters, as they may hold off from applying for the conditional order until you can reach a decision.

What am I entitled to in a divorce settlement?

There is no set formula on how assets are divided up in a divorce in England and Wales. The law sets out various factors to consider, and courts have a wide discretion on how to interpret and apply these.

The assets to be considered include property, pension, savings, belongings, and other assets. These will need to be divided fairly between the parties when divorcing. Although, this doesn’t always mean a 50/50 split. Income claims must also be considered, as sometimes one person can claim maintenance from the other.

Sometimes, a couple’s assets will include assets that are acquired from sources external to the marriage. This might include assets owned prior to the relationship, assets inherited by or gifted to one person during the marriage, and occasionally assets that were acquired or built up after the couple separated.

Most divorcing couples come to an agreement about the division of assets outside of court. However, when the court decides how assets are to be divided, they will usually take a starting point of a 50/50 split of all matrimonial assets. However, there can be reasons why this would be an unfair outcome, which the court will take into account when deciding on the division of assets.

What “fair” looks like will vary from case to case. For example, a divorcing couple with no children, earning similar amounts, who built all their assets together, and have similar future earning potential may deem it fair to have a 50/50 split. On the other hand, a couple where one person has not worked in some time to take care of children may deem it fairer for the spouse who has not worked to retain a more significant proportion of assets – for example, more of the family home, because they do not have the same level of mortgage borrowing capacity as the other.

The Matrimonial Causes Act 1973 will be used by the court to deem what is “fair”. The Act sets out several factors that the court will take into account, including but not limited to the following:

• Children under 18 and their welfare are usually the most significant factors.
• The income and future earning potential of each party.
• The financial obligations that each party has and is likely to have in the future.
• The standard of living that all parties had before the marriage’s breakdown.
• The contribution that each party has made to the welfare of the family. This includes financial contributions and those such as looking after the home and children.
• The age of each party.
• The duration of the marriage.
• Any disabilities that the parties may have.

Each case is different, and the division of the assets will depend upon individual circumstances. Meeting needs is a very important factor that may override other factors. Furthermore, the welfare of any children involved is the top concern when deciding upon the division of assets. Your lawyer will be able to advise you on the best course of action when it comes to financial settlements.

Do I have to go to court in a divorce?

Most divorce cases do not require you to attend court. In most cases, divorcing couples can decide upon matters like the division of assets and child matters outside of court, either between themselves or with the help of mediation. Typically, the only cases that require attendance in court is where matters can’t be agreed upon, and the court needs to make a decision.

What happens to the house in a divorce?

In many cases, any property owned (usually the family home) is the largest matrimonial asset in a divorce, and uncertainty about where you might live is stressful. So, it is natural to have concerns about how this will be split. The court can decide upon this if you cannot agree, though most divorcing couples can decide outside of court, perhaps with the help of mediation.

Court decisions usually work based on a 50/50 split unless there is a reason not to do so, for example, both people’s needs could not be met this way. As above, the needs and welfare of children is the top concern, so this will be the primary factor taken into account.

For example, if the person with whom the children live wouldn’t be able to suitably house them in the house was sold, it may be decided that they can stay in the house. It could then be sold once a particular event in the future happens, such as the person living in the house remarries, or the children getting to a certain age. Where possible, courts often wish to ensure both parties can buy a house if they owned one together, especially where there are children who will stay with both parties, but this is not always possible.

Before the divorce is finalised, both parties will have ‘family home rights’. This means that, even if your soon to be ex-spouse is the only one who owns the property, you still have a legal right to live there until the divorce has been finalised and a financial settlement reached. This right can be protected by entering a Family Home Rights Notice.

Can pensions be claimed in a divorce?

Pension sharing is something to be considered in a divorce, and should not be overlooked. Sometimes, the value of the pension can be greater than the value of the other assets. It is now widely accepted that simply splitting a pension fund value down the middle is not the right way to deal with most cases, and often expert help is needed.

One party might have a much lower pension provision than the other, perhaps because they earned less, and even where retirement may be some years away, it is important to consider the position in the future.

Pension Sharing Orders can only be made as part of a Financial Remedies Order, and once the pension values are known, your family lawyer will be able to advise how your pensions might fit into your settlement and how best to approach this.

What is a Divorce Financial Settlement?

A Divorce Financial Settlement is an agreement made between you and your spouse about how assets will be split in the divorce. It is important for both parties to know all the financial circumstances of each other before entering into an agreement. There is a process called disclosure where you both disclose your circumstances to each other.

You can make this agreement at any time during the divorce proceedings. Once made, you can have your lawyer draft a Consent Order (Financial Remedies Order by Consent), making the agreement legally binding and stating that both parties agree to it. A judge will need to approve this after the Conditional Order stage of the divorce has been reached.

Before a judge will approve a Consent Order, they must be provided with a summary of both parties’ financial circumstances so that they can decide if it is fair. It is important to be aware that just because you and your spouse have agreed on something, it does not mean a Judge will agree it is fair. This is because they must exercise their judicial discretion according to the law. 

Putting a Divorce Financial Settlement in place yourselves can make the whole process a lot less stressful, as it means that the court will not have to decide on a financial settlement for you. However, suppose you cannot make an amicable decision, or you and your spouse have a complicated financial situation. In that case, a judge can make a Financial Order after one person makes an application to the court. However, bear in mind that you will usually need to show that you have attended a mediation meeting before this (apart from in certain circumstances, such as where abuse is involved).

Having a Divorce Financial Settlement with a Consent Order (or an order decided by the court) in place also ensures that your ex-spouse cannot make a new financial claim against you in the future, as everything has already been decided.

Do I have to accept my spouse’s offer of financial settlement?

No. If your spouse offers you a financial settlement that you are not happy with, you do not have to accept it. It is best to come up with an agreement together that you are both satisfied with.

If you cannot agree among yourselves or through mediation, you will need to consider how best to move the matter forward. If you both agree, your case can be put to an Arbitrator who will make an award, which your lawyer would then draft into a Consent Order, or you can ask for your case to be decided by the court as a last resort.

How much does a divorce cost in England and Wales?

There is a court fee of £593 that you must pay to apply for a divorce. Then, there are lawyers’ fees involved. These vary on a case-by-case basis.

Additional lawyers’ fees are also required for a Consent Order to make your Divorce Financial Settlement legally binding, alongside a court fee of £53.

If you cannot reach a financial agreement, you will incur additional solicitors’ and court fees. The court fees for this are £275. Solicitors’ fees can become more expensive at this point, which is one of the reasons why it is recommended to come to an agreement before attendance in court is required.

If you are struggling to reach an agreement but do not want to pay for court and all of the fees that this can incur, mediation sessions are a cheaper option that may help you agree. Many of our lawyers are also trained mediators who can assist you with this.

Overall, it is impossible to say how much your divorce will cost as each case is different, and at the start, it can be difficult to predict what route your case will take. However, the more straightforward and amicable your divorce proceedings are, the less it is likely to cost both parties. Your lawyer will be able to advise you on the estimated total costs for your divorce proceedings.

Click here for more information about how much a divorce costs.

How long does a divorce take in England and Wales?

If you want to get a divorce, you’re probably eager for it to happen as soon as possible. So, how long does a divorce take? It will usually be a minimum of 26 weeks between the application and the Final Order, mostly due to the 20-week wait between the application and the Conditional Order.

However, the length of time it takes varies between cases, and it will likely take longer if there are children or issues with assets involved. Also, coming to a financial settlement is a process that runs parallel to divorce proceedings. It may take longer to finalise this than the divorce itself, which you should bear in mind, especially if you have a complex financial situation with your spouse.

Are there any options apart from divorce?

Yes, if you want to separate from your spouse but do not want to divorce, you have a few other options. These are as follows:

• You and your spouse decide to separate on an informal basis. You decide on a financial settlement and other terms of your separation among yourselves. This is not a legally recognised separation, however, so may not be an ideal long-term solution.
• A Separation Agreement is a document drawn up by a lawyer which outlines the financial settlement agreed on for the period of separation. It may also state what you and your spouse would wish the financial settlement to be if you got divorced in the future. Bear in mind that the court is not bound to follow this, but it is likely to be considered if certain criteria are met such as proper financial disclosure of assets and income between parties, legal advice on both sides and it is fair.
• Judicial Separation is a formal method of separation that is sanctioned by the court. The application process is similar to that of divorce. You need to submit an application, and again this can be sole or joint. It may be used in cases where the couple has religious reasons against divorce, or where they have been married for less than a year.

When can I remarry after a divorce?

Once you have received your Decree Absolute/ Final Order, which means that the divorce has been finalised and the marriage is legally over, you can get married again straight away.

It is against the law to marry somebody else until this point, as beforehand, your marriage is not fully over in the eyes of the law, and it is illegal to be married to more than one person at once in the UK.

Bear in mind that if you remarry without a financial settlement and Financial Order or Consent Order in place, you will no longer be able to apply for a financial provision order. This means that you will not be able to apply for spousal maintenance, a lump sum, or any property adjustment from your ex-spouse. . For this reason, it is usually advisable to wait until a financial settlement has been agreed upon before you remarry after your divorce.

Do I need a divorce lawyer?

In most cases, having a lawyer to help you through the divorce process is highly recommended. In theory, you can get divorced without the use of a lawyer, as there is no legal requirement for either party in the divorce to have one. If your divorce is very straightforward (you are a childless couple, have only been married a few years, and your financial situation is simple), this may seem a reasonable option. However, it is important to note that until claims are dismissed by the court, you could still face claims in the future, for example, if your financial position improved materially, as your former spouse’s claims will usually survive the divorce until dismissed by a court.

Furthermore, if the parties aren’t willing to communicate with each other, instructing lawyers may be necessary to ensure that proceedings can still go ahead. And, if there are any children involved in the divorce, a specialist family lawyer will be able to help you navigate the additional challenges that this may present.

In short, while you do not legally need a divorce lawyer, having one can help make the process far more manageable. They will advise you on all divorce matters and may prevent either party from making costly mistakes in the negotiations.

Do I have to proceed with the divorce once it’s been filed?

Once you have filed the divorce application, you can put proceedings on hold at any stage before and after the Conditional Order has been issued. But, it must be done before the Final Order, as this is what makes the divorce final.

If you want to stop the proceedings and completely withdraw your divorce application, you can do so with an application made by both parties.

What happens to the children in a divorce?

If you have children together, you will have to decide upon arrangements for them. These arrangements will outline who cares for the children and when, among other things.

When seeking a divorce settlement, it is essential to put the welfare of the children above anything else. This is what the court will do if a settlement is decided there. You can decide on child arrangements among yourselves and have a lawyer make them legally binding, or keep it informal if that works for you. If you struggle to come to an arrangement, you can also attend family mediation sessions. Having your child’s arrangements decided by a court will be a last-resort option due to the additional costs and stress involved.

For more information about child arrangements following divorce, click here to read our guide to child arrangements.

Where do I begin?

It is better to understand where you stand and what your options are before starting divorce proceedings, as this can help take away some of the stress and uncertainty. It is important to get things right, and to have a legally binding agreement, as parties have to live with the outcomes. A first step is often to have an initial chat with a lawyer, who can advise and suggest options for the way forward.

Our lawyers can advise about methods of alternative dispute resolution, including mediation and arbitration.

Divorce is a stressful thing to go through for anyone. However, choosing the right lawyer to help you through the process can make things easier. At Setfords, our expert divorce and family lawyers will be with you every step of the way, helping you to achieve the outcome you desire. Your matter will be dealt with by a qualified lawyer, who will be your point of contact. For more information about how we can assist you, please fill out the form below or give us a call.