What you have always wanted to know about divorce but were too afraid to ask.
When can I get divorced?
You can divorce only after you have been married for at least one year. After that either of you can start the divorce process if your marriage has broken down irretrievably.
Despite campaigns by lawyers for change, divorce must be fault based unless you have lived separately for at least two years. Whilst some couples separate before making the decision to divorce, for many this isn’t financially viable, particularly if financial issues are contentious.
Fault includes adultery or unreasonable behaviour and whilst the latter is not difficult to establish, it creates unnecessary hostility at the start which is really unhelpful.
Should I start the divorce?
If the divorce is fault based it must be the “aggrieved” party who starts the divorce (the petitioner). You cannot start a divorce on the basis of your own adultery or behaviour. Where either of you could show the other has behaved unreasonably, it is unlikely to make a significant difference who starts the divorce, except that the person who does pays the court fee (currently £550) and will control the pace of proceedings.
Allegations of adultery and unreasonable behaviour rarely penalise the other side (respondent) in proceedings concerning financial division or children.
It is usually the person who most wants the divorce, can most easily pay for it, or the one who needs urgent financial support who will start the process.
Do we need to agree?
Divorce is straightforward if both parties want it, but that does not have to be the case. The key to a divorce is to prove that the other party has seen the divorce papers. Ideally you will agree but on the rare occasions a divorce is defended it will increase hostilities and increase legal costs.
How much will it cost and who pays?
The court fee is £550 and alongside this you should budget between £500-£1000 for legal fees. This does not include costs relating to finances or children. The petitioner will pay more but in fault based divorce proceedings it is possible to claim all or part of the divorce costs from the respondent. Many people agree to share the costs.
Do we need to divorce before we talk money?
It is possible to deal with the division of assets without a divorce and record the arrangements in a separation agreement as long as it is properly drafted and you both have legal advice. Many people choose this route if they want a no fault divorce based on two years’ separation.
How do we record a financial agreement if we divorce?
If you agree how to divide the finances (between yourselves, or with the help of solicitors or a mediator) you can enter into a legally binding consent order which is approved by a judge. If financial matters are contentious and it is not possible to reach agreement it may be necessary to issue court proceedings.
If you would like further guidance, please contact one of our Family Law specialists at www.coffinmew.co.uk