Divorce and Financial Issues

Divorce

The mechanics of obtaining a divorce nowadays are usually straight forward - particularly if the couple agree that the marriage is over. The difficulties tend to lie rather in resolving the related practical issues stemming from divorce such as how to separate, where to live, arrangements for the children and any money matters.

Your attention will probably be concentrated on those related issues and the process of actually obtaining the divorce may seem blurred.

Who can start divorce proceedings?

Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. It does not matter where the couple were married.

On what grounds can a divorce petition be started?

The only ground for divorce is that the marriage has irretrievably broken down, but there is a complication. A divorce will only be granted if one of the 5 facts laid down by law, proving irretrievable breakdown, is established.

What are the 5 'facts'?

  • Your spouse has committed adultery and you find it intolerable to continue living together.
  • Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
  • Your spouse has deserted you for a continuous period of 2 years or more.
  • You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
  • You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

If the marriage has 'irretrievably broken down' and one of the 5 facts applies, what happens next?

This will depend on your particular circumstances. It is often sensible to try to obtain your spouse's consent to the petition and to try to reach agreement over the contents of the petition. For example, if your spouse accepts that the petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour may need to be given. Not saying all that might be said will not generally prejudice you.

What does the petition look like?

Every petition follows the same form. It contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down. It will also state the "fact" on which it is intended to rely.

The petition will include a section (known as a "prayer") which will include a request for the divorce to be granted. It may also include a request for an order relating to children; a claim regarding costs for divorce; and an order for financial provision.

What about the children?

A form is sent to the Court with the divorce petition which will outline the arrangements relating to the children. The law encourages couples to try and agree those arrangements. The form (known as "Statement of Arrangements") is usually completed by the person filing the petition. Preferably it should be sent to the other spouse before it is filed. If agreement is not reached, this does not prevent the divorce from proceeding.

How much does it cost?

Charges are a fixed cost of £600 + vat + court fees of £550 total £1270 provided your spouse co-operates. If he/she does not then additional costs are sometimes payable but you would be advised of these in advance.

Are financial issues dealt with before the divorce is finalised?

It is not necessary for financial discussions to be completed by the time the divorce is final. Frequently they will still be in the early stages if the finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements.

 

Financial issues arising out of marriage breakdown (financial remedies)

When a marriage has broken down and one of the parties has started divorce proceedings it is normally the wish of the parties involved that they will be able to come to a mutually acceptable arrangement over finances. It is important to obtain advice about your entitlement before reaching an agreement but once you have done so if possible negotiations should start directly between you and your spouse provided you feel confident enough to do so. If your spouse is domineering, aggressive, refuses to talk or has unreasonable expectations you may need to involve a solicitor to negotiate on your behalf. If you can reach agreement then what is called a consent order can be filed at Court.

This is subject to approval by a Judge so it has to be fair agreement. You will be required to give details of your financial position both to the Court and each other. It is sometimes necessary to involve the courts to settle any disputes. This is known as the “Financial Remedy Procedure”

The main principle in these proceedings is to enable the parties involved to come to an agreement between them at any stage of the proceedings right up to the date of the final hearing. The Courts are now operating within a scheme which attempts to encourage communication and agreement between the parties and to keep costs to a minimum.

Who can start financial remedy proceedings?

It is usual practice that when a divorce petition has been drafted and issued it contains a right for the Petitioner (person who has started the divorce proceedings) to apply to the Court to consider their financial position. The Petitioner activates this right by filing a notice of intention to proceed with this application with the Court.

The other spouse, known as the Respondent, may also apply to the Court to consider the financial position of the parties and this is also done by the completion of the Form A.

Whichever party commences proceedings, known as the Applicant, must state in the Form A what they want in terms of financial support or settlement.

What Orders are available?

The main orders which the Court can make are: