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.

Visit our factsheet here for further information.

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.

Refer to our Alternatives to Court factsheet, which will give you more information about mediation.

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 our pre-nuptial factsheet for more detailed information on this topic. For any other questions, contact our Family Law team today for expert advice.

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 separation agreements factsheet here for detailed information on the topic.

If you have any other queries, contact our Family Law department today.

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.

Read our separation agreements factsheet here for detailed information on the topic.

If you have more queries related to a separation agreement, contact our Family Law department today for friendly, expert advice.

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, please read our pre-nuptial factsheet. Alternatively, you can contact our Family Law department today for help and advice.
 

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.

Read our facts sheet about separation agreements for extra information.

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.

Read our separation agreements fact sheet for more information.

Contact our Family Law department today for any queries or assistance, we're ready to provide friendly, expert advice.

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.

For further information on this topic, please refer to our factsheet on prenuptial and cohabitation agreements. Alternatively, contact our Family Law team today for hands-on advice and assistance with your case.