Common Questions About Family Law
If you have a question about the divorce process or you want to know more about the decree nisi or decree absolute, click to find more information on the stages of a divorce and the forms involved. We know that reaching a financial agreement can be tricky so we have an article dedicated to explaining why a fair divorce settlement is not always a 50/50 split.
Read on for answers to the following divorce FAQs
The paperwork for a simple divorce can be completed within six to nine months. This includes a six week ‘waiting’ period which is imposed by the court. Generally it takes longer to reach an agreement regarding property and any children. The more you are able to talk with your spouse, the quicker you will be able to resolve matters. But if that is not possible and we have to go to court, it can take at least six months, and is usually longer.
Not always. We strive to reach agreement via correspondence and only go to court as a last resort generally.
How do I respond to a divorce petition?
If you instruct a solicitor to act on your behalf, as the respondent in divorce proceedings, then we will file the necessary document at Court for you, acknowledging your spouse’s petition. If you wish to remain a litigant in person, as divorce proceedings are now mainly online, you should have a link provided to you by the Court to complete your Acknowledgement of Service form online.
Alternatively, you may wish to seek to defend the petition, or issue your own cross petition for divorce. Both of these courses of action are extremely rare, often ill-advised and costly, but we would discuss them further with you during the course of any appointment with you.
Why does divorce cost so much?
The divorce process is in fact relatively inexpensive. The Court charges a fee of £550 (correct at May 2021) to issue a divorce petition, which is payable irrespective of whether you instruct a solicitor to assist you. You may or may not be eligible for a reduction or exemption of this fee depending on your financial circumstances.
Currently, the antiquated divorce process in place (due to be changed in the next 12 months) follows the old maxim ‘costs follow the result’. In short, as most divorces remain fault-based (behaviour or adultery based) you are in essence ‘blaming’ the other party for the breakdown of the marriage and having to incur costs to address the situation, so can claim those back. In reality, this often causes more problems and antipathy, which is why the new No Fault divorce law which is coming in will largely do away with the ability to claim costs. Instead both parties to be responsible for their own costs.
You can object to a costs order under divorce proceedings, but often it is disproportionate to do so – meaning you are likely to incur more costs than you would be ordered to pay. It is far simpler to try and agree who should pay/how the costs can be split between you at the outset.
When a Costs Order is made, once the Decree Nisi is pronounced, that is an enforceable Order of the Court. Often, if there are also ongoing financial matters, the Costs Order can be addressed as part of any overall settlement to be made.
This automatic claim is not present in Children Act proceedings or Financial proceedings so will depend on a case by case basis, but it is often very unlikely that costs will be awarded against the other party. There has to be a considerable element of misconduct (generally an abject failure to abide by the Rules/refuse to attend Court hearings) before the Court will even consider making a costs award against one party.
It is the potential Children Act proceedings and/or Financial proceedings which cost the money. Find out more about the costs of a divorce.
Yes, but it is not that straight forward and requires quite a high bar to obtain what is known as a Legal Services Order. Whether or not such an application can/should be made will depend on a number of factors, not least the incomes of the parties, ability to pay and whether or not there are any other options available – such as bank/lender borrowing or family assistance.
We offer a fixed fee which includes the court costs. Matters relating to children and finances are billed separately. This is charged at our usual hourly rate and we will discuss the cost estimate with you at our initial meeting. Click to find out more about managing and paying your legal costs.
Pensions are dealt with very differently to capital assets (property/savings, etc.)
Often the pensions will be the largest or second largest matrimonial asset and new guidance suggests that in most cases it is recommended a pension expert (PODE) is instructed. The PODE will be asked to value the pensions (as very often the value of a Defined Benefit Pension Scheme “final salary pension” – such as a Governmental or Police/Service Personnel scheme differs significantly from the value given by the scheme actuaries), they will also be asked to recommend how pensions are divided between the parties. This may mean that certain schemes are kept, while some may be transferred.
The PODE should also be asked to advise on whether capital assets can be traded (or “offset”) against pensions, should a party wish to retain a scheme and how much this would cost in terms of those capital assets.
The PODE will take into account factors such as when the contributions were made (though again guidance suggests that pension should not be considered any differently to the other assets of the marriage, in terms of when they were introduced to the relationship), your respective ages and what other assets are in the matrimonial pot.
If you are at risk of domestic violence or harassment there are applications we can make.
We appreciate this is one of the hardest elements of the proceedings, when you have to remain living in the same property. Any application is front loaded, meaning a statement will need to accompany that application to Court, so it is advisable that you keep a diary or a record of events/incidents which can be used in support of your application.
It is important to note that voluntarily moving out of the property in no way diminishes your financial interest in it. That should never be a motivation for remaining in a property and putting your health at risk – so it is important to clarify that, as we are aware it is a common misconception that many people have.
A Court Order preventing someone returning to a property, or removing them from it as a result of violence or behaviour which is considered a risk, overrides that persons legal right to live in the property if, for example they are named on a Tenancy Agreement or Land Registry title to the property.
This is never a straightforward question to give a yes or no answer to as it depends on many factors, not least the needs of the parties, as well as any children, to the marriage. The considerations to take into account will be when the inheritance was received; and if it has been mingled with other assets.
Keeping any inheritances in a separate account is often a way of clearly distinguishing that as a separate source of asset, but it will not mean that is should be ringfenced. Once inheritance is placed into a joint property for example, it becomes much more difficult to suggest that it should be ringfenced as the intention has clearly been to jointly benefit from it.
As part of any financial settlement arising from a divorce, it is commonplace to ensure that future claims, including those for any future inheritances, are dismissed. This is known as a ‘clean break’
Whatever your question about divorce or child arrangements, Ian Davies will be able to help you.
They will be responsible for your matter throughout. You will not be passed on to anyone else, other than for routine administrative matters. You can contact Ian by telephone on 01608 686590 or email or you can email the family law team to arrange your confidential conversation.