Beginners Guide to Divorce
Feeling overwhelmed at the prospect of divorce? It doesn’t have to be scary – BPS Family Law are here to make it as quick and simple as possible.
Divorce, finances, children…
It may seem like there’s a lot to consider but it’s important to know what’s what. So, there’s the divorce itself: this part is usually relatively straightforward and there is often no need to attend Court.
Then there are the finances to consider. This includes things like your house, savings and pensions. Often it doesn’t matter who these belong to in name, they all form the ‘pot’ of matrimonial assets, which then gets divided fairly. The starting point is that each spouse will receive half of the pot, subject to change if one party’s needs are significantly greater than the other’s. This is where things can get more complicated, but don’t worry, there’s more guidance below. Finally, you may need to make arrangements for children when you divorce. These issues will be dealt with separately by the Court. The most common Order made in Children Act cases is a Child Arrangements Order: this sets out whom the child is to live with or visit and when. This article focuses on the other aspects of divorce but feel free to get in touch if you would like advice on child arrangements.
A ‘quickie divorce’?
The phrase ‘quickie divorce’ is a myth; it doesn’t happen overnight. A simple divorce can be done in around 6 months if the grounds for divorce are not contested between the husband and wife. But if you need to divide your finances too it can take much longer. It’s very difficult to predict how long this takes as there are so many factors involved and matters can be complex. “What about the likes of Nigella Lawson and Charles Saatchi? Or Dawn French and Lenny Henry?” I hear you ask. Well they have to follow the same processes as everybody else; the media just put a spin on it.
The Steps Involved
So what’s actually involved in getting a divorce?
One spouse will send a petition to the Court saying that they want a divorce. This person is called the Petitioner, the other spouse is the Respondent. The petition will have to show that your marriage has broken down irretrievably.
This can be based upon one of five facts:
- That the Respondent has behaved unreasonably;
- That the parties have been separated for two years and both consent to the divorce;
- That the parties have been separated for five years (no consent is required);
- That the Respondent has committed adultery; or
- That the Respondent has deserted the Petitioner for two years or more.
The petition then gets sent to the Respondent and they fill in a form to acknowledge that they have received it. This is also their opportunity to say whether they contest divorce (the vast majority are uncontested).
After this, the Court is ready to pronounce the Decree Nisi. This is the first stage in your divorce and essentially means that the Court doesn’t see any reason why you can’t get a divorce.
You must then wait six weeks and one day to apply for the final stage – the Decree Absolute. Once the Court award this it means you are divorced.
Believe it or not, it is possible to settle your finances without ever having to attend court. This broadly involves the usual steps set out below, but it’s all done voluntarily by the husband and wife. If the parties can agree on how the finances are to be divided, your solicitor will then draw up a Consent Order. The Judge will look at this on paper and if he’s happy it receives the Court seal and is legally binding. However, it is common for voluntary negotiations to hit a brick wall, even if both of you are being fully cooperative.
What happens at Court?
If you do need to go to Court, here’s an overview of what to expect. Your solicitor will complete a form which says that you want to begin Court proceedings. In most cases, you must then attend a Mediation Information and Assessment Meeting (MIAM). The Court strongly encourages civil negotiations between husband and wife and this is an opportunity to do this. If mediation proves unsuccessful, the following hearings will take place:
1. First Appointment
Prior to the First Appointment, the parties will exchange a document known as a Form E. This document contains financial information about your capital assets, pensions, income and needs and is probably the single most important document in your divorce.
At the First Appointment the Judge will decide what further information is needed from either party and provide directions as to how the case should proceed. Common directions include property valuations and other experts such as accountants being instructed.
2. Financial Dispute Resolution (FDR)
The parties are under an obligation to attempt to reach agreement at the FDR. Importantly, the trial is “without prejudice”, meaning that anything said in negotiations cannot be raised later if the case proceeds to a final hearing.
The Judge will give an indication of how he would decide the issues at a final hearing. That Judge is then unable to have anything further to do with the case.
3. Final Hearing
If agreement cannot be reached at the FDR, there will be a final hearing. There will still be the opportunity to reach agreement on the day of the final hearing, but if this doesn’t happen then the Judge will make a decision on who gets what and will make a final Order. The parties won’t necessarily be happy with every decision made at a final hearing, but once it reaches this stage the Judge simply has to impose a compromise.