The decision to
end a marriage is never easy, and it can be very difficult for all parties
involved, both practically and emotionally. Issues such as how to divide
assets, who gets custody if children are involved and what to do with your
shared property are all issues that need addressing, but often emotions are
running high and it can be difficult to think calmly and logically. This is
where a family lawyer can help - they can offer expert legal advice, as well as
practical support and assistance to guide you through this stressful process. Smalleys Solicitors
offer affordable law
services that put your interests first - without the confusing legal jargon -
so read on to see our guide to divorce proceedings and how a family lawyer
could help you.
How do I file for divorce
In England
or Wales, you are eligible for a divorce once you’ve been married for at least
a year and the relationship has permanently broken down. You can also apply for
a legal separation if you’ve been married less than a year, or want to live
apart to give both parties some space and see if the marriage can be salvaged.
Proceedings
are often quicker and easier if both you and your husband or wife can agree on
the separation of any property and assets, custody arrangements if you have
children, and the reasons for ending the marriage. Even if both parties agree,
whoever files for the divorce petition is known as the Petitioner and their
husband or wife is the Respondent. You’ll need to fill out a D8 form (this can
found on the government website) or if you’re using a solicitor they can do
this for you.
Grounds
for divorce are based on proving that the marriage has irrevocably broken down
for one or more of the following reasons:
Adultery
In
the eyes of the law, adultery is committed if a husband or wife has sex with
someone of the opposite sex. This currently only covers heterosexual
partnerships, and you cannot use adultery as grounds for divorce if you’ve
lived together for six months or more after finding out about it.
Unreasonable behaviour
One
of the most commonly cited reasons for divorce, unreasonable behaviour covers a
range of reasons why you couldn’t reasonably be expected to stay married to
your spouse. They could include physical violence, verbal abuse, alcohol, drug
or other addictions and refusal to contribute towards household expenses.
Desertion
This
is applicable if your husband or wife has left you without your agreement,
without a reason or for more than two years over a two and a half year period.
Separated for 2 years or
more
If both
parties agree, then you can file for divorce after being separated for more
than two years, but you will need your husband or wife’s permission in writing.
You can still apply if you are living together but not as a couple e.g if you
are sleeping and eating separately.
Separated for at
least 5 years
If you’ve been separated for five years or more then you can still
file for divorce, even if your husband or wife disagrees.
To file for divorce
you’ll need your
spouse’s full name and address, a copy or certified copy of your original
marriage certificate and proof of your name change if it’s different to when
you got married. You can apply online or by post, and you’ll need to pay a fee
of £550 (help is available for those on low income).
How do divorce proceedings work
Once you’ve
applied for a divorce, the process can get started. Copies of the divorce
petition will be sent to both parties, and the Respondent must fill out and
send a D10 form to the court within eight days. Help from a solicitor or family
lawyer can be invaluable during this time; to give legal advice, discuss your
options and inform you of your rights, as well as those of your ex-partner.
Unfortunately, not all couples will agree on the reasons for divorce or how to
divide assets, so having some professional help can be a great support during a
highly emotional time. We will discuss how a lawyer can assist you in more
detail further on.
If your
divorce petition is not defended (aka your spouse has not contested the
divorce) then there are two stages to process before the divorce is made final.
Decree Nisi
This is a
document affirming that the court cannot see any reason why you’re not able to
divorce. You’ll need to fill in a further application and statement confirming
the reasons given in the divorce petition. You’ll also need a copy of your
husband or wife’s response to the petition. If approved, you and your spouse
will receive a certificate with the time and date a decree nisi will be
granted. You then need to wait six weeks and one day before you apply for a
decree absolute.
Decree Absolute
This
is the binding legal document that ends your marriage. As stated, you will need
to wait a minimum of six weeks and one day to apply, but you must apply within
12 months of receiving the decree nisi. There are further forms to fill out
which can be found on the government website, and if you want a legally binding
agreement to divide property or money, you must apply to the court before
seeking the decree absolute.
Once
granted, you are officially divorced and free to marry again in the eyes of the
law.
How can a family lawyer help?
In many
cases, it’s best to seek legal advice as soon as possible, especially if your
husband or wife is contesting the divorce or making the process difficult. This
is even more necessary if you’re at risk of violence, having nowhere to live,
have a lot of assets or are struggling to gain fair access to your children.
A solicitor
can assist you with each stage of the process, from helping you decide the
grounds for divorce, explaining the legal process and offering mediation to resolve
any disputes. If the divorce goes to court, they will also present the case on
your behalf and explain any consequences of the judge’s decision. They will
also sort practical arrangements such as where each party will live and any
custody or access arrangements if you have children. As you can see from the
outline above, divorce proceedings involve a lot of paperwork, and it can save
a lot of time and stress if you have a professional working on your behalf.
Children and divorce
If children
are involved in a divorce then the law will put their welfare above anything
else. A solicitor can act as a mediator between you and your ex-partner if
you’re struggling to come to an agreement. This could cover practicalities such
as where the children will live, how much contact they have with each parent,
how much maintenance needs to be paid and where children will go to school or
spend the holidays.
Dividing assets
A court will
always attempt to divide a couple’s assets fairly, but this does not always
mean that things will be divided 50/50. There are several factors that will
affect the decision, including whether you signed a prenuptial agreement, the
needs of dependent children, and each spouse’s earning capacity. In most cases
a court will seek a ‘clean break’ - this is a financial separation between both
parties, aside from maintenance payments such as child support.
Alternatives to court
As explained
above, a court order is needed to get a divorce, but it is not necessary for
either party to attend court in person to reach a settlement. Even if a divorce
is proving unamicable, in most cases attempts at mediation will be made before
attending court as a last resort. A judge will usually want proof that you and
your husband or wife have at least attempted this before coming to court for a
final decision. Your family lawyer will be able to set up mediation for you,
and legal aid is available to help cover costs in some cases.
If you need
a trusted local solicitor to assist you with divorce proceedings, then get in
touch with Smalleys Solicitors. A law firm based in Nottingham, we offer
personalised, expert advice when you need it most. We’re committed to helping
you get the best deal possible, and our family lawyers are trained in
Resolution, a body committed to the constructive resolution of family disputes.
To find out more about how we can help, call our friendly team or visit the website today.
