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The divorce process – answering the top seven questions

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Divorce is a notoriously difficult and emotional process to go through. It can also be overwhelming initially, so we have gathered together the seven most frequently asked questions to help you understand the divorce process and bust some common myths.

1) What is the difference between judicial separation and divorce?

A judicial separation means that you remain married to each other. Although we can support you in preparing a suitable separation agreement, it must be emphasised that you would remain married.

Although uncommon, there are various reasons why a judicial separation could be sought, including religious factors. Some couples also wish to take some time apart to decide whether they want to end the marriage, so this could be the most appropriate way forward.

This is compared to a divorce, where the marriage is dissolved and legal ties are severed. Under the current process for divorce, the petitioner has to show that the marriage has broken down irretrievably. To satisfy this, they have to rely on one of five factors: adultery, unreasonable behaviour, desertion, separation for two years with consent, or separation for five years without consent. For further information on how the law is changing and ‘ending the blame game’, please see our blog ‘No fault divorce to become law’.

2) How much will the divorce process cost?

The court cost of applying for a divorce is £550. The petitioner pays this but can include a claim for costs. This is often the case and tends to be negotiated and agreed between the parties. Applications can be made online, but if you require solicitor support, you will have your solicitor fees in addition to the court fee.

If, throughout the divorce process, you require assistance negotiating or potentially bringing, or responding to, court proceedings involving finances or child arrangements, solicitor fees will be charged on an hourly basis. We always encourage parties to reach agreements where possible to avoid court proceedings and we actively encourage alternative dispute resolution like arbitration and mediation.

3) How much am I financially entitled to?

Although not directly related to divorce, you must consider how you wish to proceed with your financial matters. The starting point the courts take when establishing financial settlements is 50/50. The courts do not discriminate between the homemaker and breadwinner. The main focus is ensuring that both parties and any children or other dependents are housed and have enough income to live a similar lifestyle to that prior to divorce.

Despite popular belief, if your partner has committed adultery, you are not entitled to any more of the asset pool. Courts only take bad behaviour into consideration if it is extreme and exceptional, or of a financial nature, such as , attempting to hide assets.

4) What happens to the children?

The majority of parents manage to come to arrangements without the use of solicitors or the courts.  If agreements cannot be reached, mediation could help to resolve matters and reduce conflict. If this is not successful, we would be able to assist you in negotiating a fair arrangement with the children’s best interests as the main priority. If required, an application can be made to the court for a Child Arrangements Order, to set out with whom the child should live, and the frequency and duration of the time spent with their other parent.

5) Will I have to go to court?

Providing the divorce and costs involved are not disputed, you will not have to attend court. However, if the costs cannot be agreed between the parties, a short hearing will be necessary to give you both the opportunity to explain why you’re unwilling to contribute. The court then decides the costs. This needs to be avoided, where possible, as it wastes the court’s time and resources.

6) Should I wait until I am divorced to make or amend my Will?

No, it is paramount to consider amending or making your Will as soon as possible following separation to reflect your wishes. Our Private Client Team can happily assist you with these arrangements.

You also need to consider your property. If it is held as ‘joint tenants’, the property would automatically go to your ex-spouse, so this would need to be changed to ‘tenants in common’.

7) How long will the divorce process take?

From start to finish, the divorce process usually takes around four to six months. But the speed ultimately depends on how quickly the respondent acknowledges service; how soon after the decree nisi that the decree absolute is applied for; and the court. We do not advise for the decree absolute to be applied for until financial matters have been agreed.

In 2018, 118,000 people petitioned for divorce. With such changes to the law as the no fault divorce expected in the coming months, we are unsure whether the volume of petitions will increase, potentially causing the divorce process to take longer  in the future.

Please talk to a member of our Family Team if you would like to discuss any of this blog in greater detail.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.