Separation & Divorce FAQs

Unfortunately, there is no such thing as a ‘quickie divorce’, even if you are a celebrity!

For more information on the ‘quickie divorce’ myth please read our blog here.

Everyone must follow the same steps:

• The party seeking a divorce (the Petitioner) must state in the Divorce Petition that the marriage has ‘broken down irretrievably’ by proving one of five facts: adultery, unreasonable behaviour, two years’ desertion, two years’ separation with consent, or five years’ separation. The Petition must be lodged with the Court, along with the original marriage certificate and a fee (currently £550).
• Once the Petition has been lodged with the Court, the Court will then serve it on the other party (the Respondent), who must then confirm that the divorce should go ahead, or object and defend the Petition. They will need to file an Acknowledgement of Service form within 8 days of receiving the Petition.
• If the Respondent doesn’t object, the Petitioner can apply to the Court for the ‘Decree Nisi’. There is no need for the parties to attend a hearing. The judge simply reviews the application and if all is in order, pronounces the Decree Nisi by reading it out in Court. As a guide, a Decree Nisi is usually pronounced within 6 – 8 weeks of issuing the Petition.
• The Petitioner must then wait a statutory 6 weeks and 1 day from the date of the Decree Nisi before applying for the Decree Absolute which is the final stage of the process. Only when the Decree Absolute is pronounced are the parties legally divorced. If for some reason the Petitioner does not apply for the Decree Absolute, the Respondent may do so 3 months after the 6 week and 1 day period has expired.

In practice, the length of time between Decree Nisi and Decree Absolute is often far longer than 6 weeks and 1 day as it is advisable to come to an agreement with your spouse regarding finances before dissolving the marriage.

So how long does a divorce usually take?

If everything has been agreed in terms of finances, the divorce process from the date of issuing a Petition to obtaining a Decree Absolute, should be around 5 – 6 months.

It is now possible for individuals to apply for a divorce online: www.gov.uk/apply-for-divorce. The application fee is the same as the paper process (£550), and it is hoped that this method may cut down on some of the delays of the paper process, although the statutory wait of 6 weeks and 1 day between Decree Nisi and applying for Decree Absolute still applies.

Mediation is a series of round-table meetings with your spouse or partner and a mediator. The mediator remains impartial throughout, whilst providing a calm, controlled environment in which your voice may be heard. The mediator will not advise you or take sides but will assist you in thinking about and discussing areas on which you both need to reach an agreement.

It is always helpful to see a solicitor prior to starting mediation so that you can discuss your rights and entitlements with them. Also following meditation sessions, you can obtain their advice in respect of any negotiations and proposals that have taken place during mediation, in preparation for your next session.

If you are able to reach an agreement in mediation, the mediator will draw up a Memorandum of Understanding which your solicitor can then convert into a legal agreement that can be sent to the court for approval.

Further information can be found in our fact sheet, find it here.

For more information and helpful advice about the benefits of the topic discussed, read this blog.

The main advantage of mediation combined with intermittent advice from your solicitor, is that it is considerably cheaper than the court process and allows you to retain control over decisions about your family’s future.

The idea of mediation is to help reduce tension, anger and misunderstandings between parties. This can be especially important where there are children because whatever you may feel about each other, you are going to need to get on as parents for the wellbeing of the children. Mediation is designed to encourage co-operation between parties and to prevent disputes intensifying.

For further information about the advantages of mediation, read this blog by clicking here.

Refer to our ‘Alternative to Court’ facts sheet, which will give you more information about mediation. Find it here.

The phrase “common law wife/husband” is commonly heard but there is actually no such thing as a common law marriage. This sometimes catches people out when they have been living together and the relationship breaks down as they often assume that they have the same rights and entitlements to property and finances as a married couple, but they do not.

If you have been cohabiting and your relationship has broken down,  please contact the Family team at Dean Wilson on 01273 249200 and they will be happy to advise you.

As with a pre-nuptial agreement, you will both need to provide full and frank financial disclosure and take independent legal advice on the terms of the agreement, to ensure that you are entering it freely and with all the relevant information. The agreement must be by way of a deed and must be signed by both parties.

In recent years, Judges have become increasingly minded to implement the terms of post-nuptial agreements providing that they are fair. However, you should bear in mind that the Family Court retains a wide discretion and overarching power to vary terms agreed between couples so there is no cast-iron guarantee that an agreement will be upheld.

Read more about post-nuptial agreements here.

A separation agreement will often be put in place for a period of two years to allow a couple to divorce on the basis of two years’ separation by consent at the end of the time period, but it can last for as long as the couple wish to remain separated but not divorced.

Refer to our facts sheet that covers this topic in detail, read it here.

If you have any other queries, further information about separation agreements can be found in this article. Read the article by clicking here.

A separation agreement can be drawn up in situations where a couple have decided that their marriage or civil partnership is over, but they are unable to obtain a divorce or dissolution immediately as there has been no infidelity or unreasonable behaviour.

Alternatively, it can be put in place whilst a couple take some time apart to reassess their relationship. It is essentially a contract to deal with a couple’s financial responsibilities and responsibilities to their children. For example, it can be used to agree who will pay the mortgage/rent and household bills and who will have care of the children during the period of separation.

For further information about separation agreements, read our facts sheets covering this topic. Find it here.

If you have more queries covering this, you may find this blog helpful. Click here to read.

Mediation is not compulsory – it is always voluntary. For it to work, both parties need to take part.  Neither of you should feel threatened or pressured by the other to attend.  You do not have to attend mediation if you do not think it is for you.  Also mediation is not appropriate in every case.  

A post-nuptial agreement or “postnup”, is an agreement entered into after a marriage or civil partnership which sets out what the financial terms of any separation, divorce or dissolution would be.

It can be useful to enter into one of these agreements if your circumstances have changed since signing a pre-nuptial agreement, for example, if one of you has received an unexpected inheritance since the marriage or you have had children or acquired property. Alternatively, you may wish to enter a post-nuptial agreement if you ran out of time to sign a pre-nuptial one (pre-nuptial agreements must be signed no later than 28 days before the marriage). If you amend a pre-nuptial agreement after the marriage, it becomes a post-nuptial agreement.

Occasionally, a couple may wish to sign a post-nuptial agreement if the marriage has previously been in difficulties and they wish the relationship to continue but with clarity over their finances.

For further information, this article may be useful to you. Click here.
 

Separation agreements aren’t technically legally binding, but they are a contract so can be still be challenged in court. Separation agreements can form the basis of the terms of any financial settlement/financial consent order on divorce/dissolution and these are legally binding. However, it is important to ensure that the terms are fair to both parties and that no significant changes have taken place between the date of the agreement and divorce/dissolution.

Our facts sheet about separation agreements may give you some extra information, read it here.

Read this article that covers this topic in depth, find it here. 

Both parties should take independent legal advice on the terms of the agreement and the agreement should only be drawn up following full and frank financial disclosure. This is to ensure that both parties are fully aware of what they are signing and that the terms are fair to both.

For further information about separation agreements read our facts sheets here.

This article may cover more queries about this topic, to read click here.

A pre-nuptial agreement is a legal document that sets out how assets should be divided between a couple in the event of the breakdown of their marriage. People may decide to enter into a pre-nuptial agreement for a variety of reasons such as:

• To protect family wealth e.g. in circumstances where one party has inherited significant wealth or assets prior to the marriage.
• To keep one’s own assets e.g. in circumstances where one or both of the parties have been married before and wish to protect their assets for the children of the first marriage.
• Certainty – unfortunately, certainty is hard if not impossible to obtain. The substantive law in section 25 of the Matrimonial Causes Act 1973 which the court considers when making any financial orders, is constantly being developed and the way in which prenuptial agreements are treated is also the subject of interpretation.

For a pre-nuptial agreement to stand a chance of being seen as contractually binding, the Law Commission recommends that it should meet the following criteria:

• There must be full financial disclosure by both parties
• Both parties must have received independent legal advice
• The agreement must have been signed no later than 28 days before the wedding
• The agreement should be in the form of a deed
• The agreement should be signed by both parties with a statement that the parties understand they are contracting out of the court’s jurisdiction
• There should be no fraud or undue influence
• The agreement should make provision for meeting the needs of the parties and the children of the family

Clients should bear in mind that ultimately, in the event of a dispute, the courts have the power to vary agreements in the interests of fairness or meeting need. Whilst they will consider the existence of a pre-nuptial agreement, they will decide what weight should be given to it in the context of all the relevant circumstances of the case.

Refer to our facts sheet that cover further information regarding prenuptial and cohabitation agreements. Read it by clicking here.

Read this blog that discusses a ’10 point guide to prenuptial agreements’, it may be useful. Find it here.