Family, Children, Divorce & Relationship Matters - FAQs

Divorce FAQS

Q. What are the grounds for divorce?

A. There is only one ground for divorce in England and Wales which is that the marriage has irretrievably broken down. This is proved by showing one of the following five facts:
(a) the other party's adultery;
(b) the other party's unreasonable behaviour;
(c) the other party's desertion;
(d) separation for 2 years with the consent of both parties;
(e) separation for 5 years without the other party's consent.

Q. How long does a divorce usually take?

A. An undefended divorce typically takes between 4 and 6 months. It can take longer if the other party is living abroad or there are difficulties contacting them or their address is unknown.

Q. Do I need to attend at Court as part of the divorce proceedings?

A. Providing that the proceedings are undefended, it is very unlikely that you will have to attend Court a part of the divorce proceedings. Occasionally, if the District Judge is unclear about the arrangements for the children a short appointment at Court will be listed and the parties and their lawyers will be asked to attend.

Q. How long do I have to be married before I can divorce?

A. You must be married for at least one year before you can divorce. You can of course separate without divorcing.

Q. Are there alternatives to divorce?

A. Yes. You may wish to consider simply separating and putting in place a separation agreement to deal with the financial issues or you could consider a judicial separation. We can advise you on what is appropriate in your circumstances.

Q. What documents do I need to produce to begin divorce proceedings?

A. The Court will require you to produce your original marriage certificate. If you do not have this you will need to obtain a certified copy. You can obtain one from the Central Registry of Marriages, the Registry Office nearest to your place of marriage or sometimes the place where you married. The Court will require your original marriage certificate and it will not be returned to you.

Q. How do I know if I can divorce in England?

A. This will depend entirely upon your individual circumstances. Please telephone us to discuss this.

Q. When can I remarry?

A. You can only remarry after your decree absolute has been pronounced. In certain circumstances you may be advised not to apply for your decree absolute on the first available date and to instead wait until the financial issues have not been resolved. If you remarry you will lose your entitlement to claim any spousal maintenance from your ex-spouse.

Children issues FAQS

Q. What is parental responsibility?

A. Parental responsibility is described as "all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his child property". Important implications of having parental responsibility include participating in decisions about a child's welfare, providing consent to medical treatment, making decisions about education and religion, changing a child's surname and taking the child abroad.

Q. Do I have parental responsibility, and if not, how do I obtain it?

A. Mothers automatically have parental responsibility for their children. Fathers who were married to the mother at the time the child was born or who subsequently married the mother have parental responsibility. For unmarried fathers they will automatically have parental responsibility if they are named on the birth certificate and the child was born after 1st December 2003. For children born before that date the father will not automatically have parental responsibility but he can obtain it by entering into a parental responsibility agreement with the mother or by an Order of the Court.

Q. Am I entitled to access or contact with my children even though I no longer live with them?

A. As the mother or father of a child you have an automatic right to apply to the Court for a Contact Order if you are being denied access to your child. A Contact Order requires the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the Order. The Court will only make such an Order if it is in the best interests of the child and the Court will take into account a number of matters when making this decision with the welfare of the child being the paramount consideration.

Q. Can I apply for custody or residence of my children?

A. As the mother or father of a child you have an automatic right to apply to the Court for a Residence Order together with other orders as listed under Section 8 of the Children Act 1989. The Court will only make such an Order if it is in the best interests of the child and if the Court considers it better to make an Order than to have no Order at all. The Court will take into account a number of matters when making this decision with the welfare of the child being the paramount consideration.

Q. How much do I have to pay in maintenance for my children?

A. Child maintenance is administered by the Child Support Agency or the Child Maintenance Enforcement Commission who took over this role from the courts. The level of child maintenance payable is governed by a formula based on the net or gross income of the paying parent. The percentage payable is dependent on the number of children and the number of overnight stays that the children have with the paying parent. Your solicitor can work this out for you.

Q. Do grandparents have the right to see their grandchildren?

A. Grandparents do not have an automatic right to apply for a Contact Order as parents do but they can apply to the Court for leave to apply for an Order and this will usually be granted unless there are good reasons to refuse such an application. The Court will only make a Contact Order if it is in the best interests of the child and the Court will take into account a number of matters when making this decision with the welfare of the child being the paramount consideration.

Q. Is it expensive to apply to the court?

A. Yes. There is a Court Fee payable when making any application under the Children Act 1989 and this is currently £175.00. Legal fees are likely to run into thousands of pounds depending on whether matters can be resolved by agreement or if the Court is required to make a decision. It is always preferable to agree matters outside of Court if at all possible.

Q. How long do court proceedings take?

A. This is dependent on whether matters can be agreed at an early stage or whether the Court is required to make a decision. If matters are agreed at the first Court hearing the proceedings may take just a couple of months, if the Court are required to make a decision the proceedings could take up to a year to be resolved.

Cohabitation FAQs

Q. What is a "common law wife"?

A. Such a thing does not exist in law, however, many people believe in the notion. Some people believe that after two years of living with a partner they are deemed to be a common law wife thereby giving them rights to make claims against their other half. This is not the case.

If you separate from your partner, you do not have any financial claims akin to those of a spouse or civil partner on marital breakdown, however long you may have lived together.

If you do not have children with your partner, any claims will be limited to those relating to any property.

If you own a property with your partner, how the equity in the property will be divided upon separation will depend upon how you hold the property.

Q. Am I entitled to a share in my partner's property?

A. If the property in which you reside with your partner is in their sole name, you have no automatic right to a share.

There are 3 potential ways in which you could establish a share:-

By showing that you have made a direct contribution to the purchase or value of the property; or
By showing that there was a common understanding, agreement or intention between you and your partner that you would have an interest in the property. You would usually need to show that you have made a contribution, either direct or indirect, to the purchase of the property. The contribution could have been by paying the mortgage payments or paying all other bills so that your partner could pay the mortgage; or
By showing that you have acted to your disadvantage as a result of a promise by your partner that you would have an interest in the property. You would need to show that your partner was aware that you were acting on this basis.

If you are able to establish that you have an entitlement to a share what your share will be will depend upon a number of factors.

Q. We own a property in joint names, what share am I entitled to?

A. You will each be entitled to a share of the property in accordance with how the ownership of the property is declared in the Title Deeds unless you can show that there has been fraud or mistake.

Please note that joint property can either be held as beneficial joint tenants (which means you are each jointly entitled to the sale proceeds) or as beneficial tenants in common (which means you are entitled to the sale proceeds in whatever shares specified).

Q. Will the property have to be sold?

A. It depends upon the circumstances. In some cases there may be a transfer of the property in consideration of a lump sum payment or the property may be sold and the sale proceeds divided.

Q. What will happen to the property if my partner dies?

A. If the property is held in your partner's sole name it will pass in accordance with the terms of their will. If they have not made a will it will pass to their next of kin, which is not you, it will be their spouse or civil partner and/or their children.

If the property is held in your joint names as beneficial joint tenants it will pass automatically to you.

If the property is held in your joint names as beneficial tenants in common your partner's share will pass in accordance with the terms of their will or to their next of kin.

Q. Can I claim maintenance from my partner?

A. No. If you and your partner have children who reside with you, you are entitled to claim maintenance for the children. You can apply to the Child Support Agency for a child maintenance assessment if you are unable to reach an agreement.

In certain limited circumstances you may be able to claim child maintenance through the Courts.

An application could potentially be made for a lump sum payment to meet specific capital needs of the children.

Q. Does my partner have to provide housing for our children?

A. If you and you partner have children and they are living with you, you can make a claim in certain circumstances for a transfer of property or a lump sum from your partner to assist in the purchase of a property.

If you were successful, as the transfer or lump sum would be for the benefit of the children, in most circumstances the capital provided would revert to your partner upon your youngest child attaining the age of 18 years or ceasing full time education.

Q. Do I have any claim if my partner dies?

A. You may be able to make a claim against your partner's estate if you have lived together for 2 years prior to their death or you were dependant on them.

Q. Will we have to go to Court?

A. You and your partner should attempt to reach an agreement between you if at all possible but you should both obtain independent legal advice to ensure that any agreement reached is legally binding upon you both.

If you are not able to reach an agreement between you, you may wish to consider attending mediation together where you would try to reach agreement with the help of a trained mediator in an informal, confidential atmosphere.

In the alternative, negotiations could take place between your respective solicitors.

Court proceedings are usually only started as a last resort.

Q. How long could Court proceedings take?

A. In our experience the average case takes between 3 and 15 months from when Court proceedings are started.

Financial Issues FAQS

Q. How are the financial issues dealt with post separation?

A. There are a number of ways to resolve these issues. Generally, once solicitors are involved they can negotiate settlement on their client's behalf once there has been full financial disclosure of each party's assets. Sometimes however, collaborative law or mediation are better ways of resolving the issues. Please see our guides for a full overview of these services. Occasionally, Court proceedings known as "ancillary relief" proceedings need to be issued.

Q. Do I still need to see a solicitor even if we have agreed all the financial issues between ourselves?

A. Yes. Firstly it is important that a solicitor advises you as to whether the agreement is fair and whether it can in fact be implemented. Secondly, and most importantly if an agreement is to be legally binding upon the parties it must be approved by the Court. The agreement needs to be incorporated into a Consent Order and submitted to the Court for approval.

Q. What financial documents will my solicitor need to see?

A. Your solicitor will want to see documentation relating to all of your financial affairs. This will include but not be limited to: 12 months bank/building society statements for all accounts, up to date surrender values for all endowment/life policies, up to date valuations for all ISA's, up to date valuations of any property owned by either party, last years P60, last 3 months payslips, the Cash Equivalent Transfer Value of any pension(s), and documentation relating to any debts.

Q. What does the Court consider when deciding how to resolve the finances?

A. First consideration will be given to the welfare of any minor child of the family who is under 18.

Secondly, Section 25 of the Matrimonial Causes Act 1973 sets the criteria out as follows:
1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect the party to the marriage to take steps to acquire.
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
3. The standard of living enjoyed by the family before the breakdown of the marriage.
4. The age of each party to the marriage and the duration of the marriage.
5. Any physical or mental disability of either of the parties to the marriage.
6. The contributions that each of the parties have made or is likely to make in the foreseeable future to the welfare of the family including any contribution by looking after the home or caring for the family.
7. The conduct of each of the parties if that conduct is such that it would in the opinion of the Court be inequitable to disregard it.
8. In the case of proceedings for a divorce the value of each of the parties to the marriage of any benefit which by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

A specialist family solicitor will advise you how to interpret these criteria and apply it to the individual circumstances of your individual case.

Q. I'm afraid that my spouse may be disposing of assets. What should I do?

A. You must contact a solicitor immediately. There are Court proceedings that can be issued to stop assets being disposed of or to retrieve assets but these are emergency applications which need to be issued without delay.

Collaborative Law - FAQS

Q. What does collaborative Family Law involve?

A. Both clients retain separate specially trained Collaborative Lawyers to assist them in resolving issues without going to Court.

A Collaborative Family Lawyer acts for each client, providing legal advice and guidance throughout the process, but working with their partner and his/her Lawyer as part of a team to help achieve settlement. You are both in charge of the process because it is your settlement.

The parties and their Lawyers agree to work together in a respectful, honest and dignified way to try and reach settlement without threatening to go to Court. The parties sign one agreement at the outset which disqualifies the Collaborative Lawyer from representing either party at Court if the collaborative process breaks down. Neither of the Lawyers, nor their respective Firms can then act for you although they will still be bound by their duty of confidentiality about the content of the negotiations. New Lawyers would need to be instructed if the matter proceeded to Court.

All issues are discussed and hopefully resolved in "4 way" face to face meetings between the parties and the parties' Lawyers. Settlement discussions take place in the parties' presence which provides reassurance to the parties that they are in charge of the process. The Lawyers are present to help articulate each parties' views and secure each parties' interests.

The process i.e. "the 4 way meetings" should help to improve communication which is particularly important when children are involved. Discussions will focus on the needs and interests of the parties and their children.

Correspondence between Lawyers is discouraged. The idea is to reduce costs and reduce situations where acrimony or misunderstanding could arise.

Meetings are arranged at the beginning of the process. There is no need to wait for Court dates. Meetings are set at times and dates to suit both parties and alternate between both Solicitors' offices.

Parties can involve other professionals jointly, if this assists e.g. an accountant to give tax advice or value a business or mediators or children experts.

Q. What is the point of a collaborative approach?

A. To assist spouses/partners to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of all the family.

Q. How does Collaborative Law actually work in practice?
A.

Both parties will agree to attend a series of meetings as part of the "4 way process". There will be between 4 and 10 usually;
Both parties will sign participation agreements which means if matters cannot be resolved the Lawyers cannot continue to act;
Both parties will, as part of that agreement, be bound to provide full and frank disclosures of all documents and information that relates to the other issues, entirely, completely and early on in the process;
Both parties will fulfil a continuing and ongoing duty to disclose information during the collaboration without prompting;
Both parties will agree to move at the pace of the slowest participant;
Both parties will, with the help and assistance of their Lawyers agree their agenda for each meeting so that neither are surprised during that process;
Both parties, by agreement will as part of the process discuss separation, divorce, financial issues, costs and most importantly issues relating to the children where appropriate.

Q. What if the collaborative process fails?
A.

If matters cannot be resolved or parties feel they genuinely cannot continue with the process then both Lawyers and their Firms will withdraw;
Save for in an emergency parties will not then issue proceedings for 21 days "the cooling" off period.
If an agreement is reached and it becomes apparent that one party has not fulfilled their duty of disclosure then a party may, subject to the circumstances, seek to overturn the agreement, even if it has been made into a Court Order.

Q. What if the collaborative process succeeds?
A.

Parties will agree as part of the procedure who will issue the divorce proceedings and on what basis;
At the appropriate point within those proceedings the Consent Order agreed by all parties will be submitted to the Court for the Court's approval.

Q. What is the difference between Collaborative Law and Mediation?
A.

A Mediator is neutral and is prohibited from giving either of the parties advice or advocating either parties' position.
The Mediator is only there to facilitate you and your partner and has a duty to advise you to take separate legal advice.
Any settlement discussed during mediation is only binding once both parties have had an opportunity to take separate legal advice. The Mediator unlike the Collaborator does not prepare the Court documents.
Lawyers are not present during Mediation unlike the collaborative process.
Provided agreement is reached your Collaborative Lawyer will then act for you in the divorce and prepare the necessary documentation to obtain the Consent Order.
Mediators may still have a role in the Collaborative process if that assists the parties.

Q. Is Collaborative Family Law the best choice for me?

A. Collaborative Family Law does not suit every party or every situation but it may be an option if:

The parties want a dignified non-aggressive resolution of all issues;
The parties have children and wish to reach resolution by agreement with their needs and interests at the forefront of the agreement;
Parties would like to keep open their possibility of friendship in the future;
Parties have extended family and friends with whom they both wish to keep in touch in the future;
Parties do not wish to "hand over" decisions to Lawyers or Judges.

The main aim of the process for both parties is not to "seek revenge" but to obtain a workable solution for all the family.

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