A Guide To The Divorce Process

Making the decision to end your marriage will never be an easy one, but understanding the divorce process may help you to feel a little more in control of what is happening. This guide will lay out the procedure for you and highlight some of the areas you need to consider.

In order to start the divorce process, you must have been married for a least a year and your marriage must have irretrievably broken down. Once you have decided that this is the case, you must decide which of the five divorce facts you will rely upon. They are:

Adultery – you may think this is self-explanatory, but this fact cannot be used in a same sex divorce due to the legal definition of adultery – this is a sexual relationship between someone of the opposite sex, who is not their spouse. This is a difficult fact to use in a divorce, particularly if your spouse does not admit to the adultery. If this happens, you will have to prove it happened and this can be hard to do.

Unreasonable behaviour – this covers a large scope of behaviours which could range from domestic violence or mental abuse to not taking part in cleaning and managing the house. It is important to understand that you will have to explain your spouse’s behaviour and the impact on you and demonstrate several times when this behaviour has happened.

Desertion – if your spouse left and you do not know where he or she is and you don’t know why they left.

Separated for two years – you can divorce after a two year separation as long as your spouse agrees to the divorce.

Separated for five years – if your spouse does not agree to the divorce, you will need to separate for five years. After that period, you can end the marriage without their consent.

Once you have decided on which fact you will use for your divorce, you will then complete a Divorce Petition, also known as a Form D8. You can get hold of this form along with the guidance notes from the court service website or from your local court.

If you have children and they are under 16 years of age or still in education full time, you will have to complete a Statement of Arrangements for the Children, known as a SAFC or Form D8A. This only sets out the arrangements for your children and the court will not make any decision on who your children live with, without you making a separate application to the court alongside your divorce.

On the divorce petition, you will need to indicate any financial claims you will make against your spouse. You should get legal advice on this as if you miss any elements off at this stage, you will not be able to claim later.

You will issue (a legal term used to indicate it has been sent) the divorce petition to the court along with your marriage certificate and once you do this you will be known as the ‘Petitioner’ and your spouse is the ‘Respondent’.

The court will send the petition to your spouse, known as service and they must respond to acknowledge service, usually within eight days, by signing and returning the acknowledgement of service.

Once this has happened and your spouse does not contend the divorce, you will sign an affidavit to confirm all details are true and a judge will decide by reading the paperwork if you should be granted a divorce.

You will be given a Certificate of Entitlement to Decree Nisi and this will show the date and time your Decree Nisi will be given in court. After six weeks and a day, you can apply for your Decree Absolute and you are now officially divorced.

Do speak to a solicitor about the process, your rights and any issues about children and your financial situation so you are protected.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitors
0207 183 2898

Should Cohabitation And Legal Rights Go Hand In Hand?

The myth of common law marriage has been around for so long and many people still believe that if you live with someone for a period of time that you obtain similar rights to those of a married couple.

Even though this is absolutely untrue, a recent YouGov survey demonstrates that there is a real lack of knowledge and understanding around the legal rights of a cohabiting couple.

Nearly half of the people surveyed (2,000) thought that a cohabiting couple had the same rights as a married one and well over a quarter thought they were given some of those rights. Additionally, the survey has identified that more women than men had these wrong ideas in place about cohabitation.

What many people fail to realise is that a cohabiting couple has no legal rights, even when they have lived together for 40 years. If one of them died after buying a home together and left no Will, the other person would have no legal entitlement to any of their estate under the laws of intestacy.

In addition, the disparity does not just occur when there is a death. If a cohabiting couple splits up and they have children, there is often a poor one-off financial settlement made that does have a negative impact on the children of these families. In fact, many unmarried parents are completely unaware that they can make a request for financial support through the Children Act on top of the child maintenance they are paid. This is demonstrated by the fact that only 407 awards have been made in the last 4 years.

Politicians are picking up the issues of cohabitation rights, with a Bill being raised in the House of Lords on this very issue. There is wide spread support for the Bill, but some argue that if a couple wants the same rights as a married couple, they should just get married and there is no need to amend the law.

It does remain unclear how these rights would be implemented and how long you would need to cohabit before these rights came into force, but no doubt this is a story that will continue to divide opinion.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitors
0207 183 2898

Divorce Centres And What They Mean For Divorce

The beginning of July heralds a new beginning for divorce in England and Wales when it will be possible for couples to head to a Divorce Centre and end their marriage there and then. These centres have been championed by the current government who, in an attempt to cut the cost of the court service in the UK, will divert nearly all of the 120,000 divorces that are granted each year in England and Wales away from court.
From July, there will be 11 centres nationwide, processing divorces from England and Wales, as the legal process is different in Scotland. The biggest of these centres will be in Bury St Edmunds, handling divorces from London and the South East.

These regional offices will be processing divorces in a similar way to how a production line works, and instead of a judge reviewing the paperwork, an administrator will. It is not clear currently whether the cost of a divorce will fall as a result of these ground-breaking changes. Currently, you pay £410 to get divorced and it takes around eight months from start to finish. However, the time it takes to get a divorce looks set to fall dramatically, with paperwork being processed on the day of receipt or when there are big backlogs, within 48 hours.

This process only applies to non-contested divorces, where both parties agree to it and many people in the legal profession feel that this process is standardised enough to work effectively through these administration centres.

However, there are others that see the move to an admin based function as belittling the divorce process and devaluing it to something administrative such as applying for a passport or driving licence and in addition, diminishing marriage in our society.

In particular, Ann Widdecombe, former Conservative MP has been very vocal in her disapproval of these new divorce centres, commenting that “the idea is most unwelcome” and that “the state should show stronger signals in support of marriage”.

This new admin process does not change the grounds for divorce, nor removes any other part of the process, it just takes all divorces where both parties agree out of the court function.

It remains to be seen how this process works in practice and whether the governments processing targets can be met.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitors
0207 183 2898

The True Cost of Litigation in Divorce

When a marriage breaks down it is devastating and trying to unravel years of joint financial interests and access arrangements for children can be difficult. Although many couples manage to split amicably, the process of divorce, which can be adversarial by its nature, can cause even bigger rifts and lead to huge disagreements.

These disagreements do need to be settled though and often they end up in court. This is what happened in a recent case where a couple were at the High Court fighting over assets of £6 million where they have already accrued a legal bill of over £1 million and are still some way off settlement.

The judge in this case, Mr Justice Holman has repeatedly told both Mr Fields, an American lawyer, and his fifth wife, Ms Parfenova, to settle the claim to avoid this being settled through litigation at a very high cost, both financially and emotionally. He repeated at the closing of the case after a week of evidence, that he felt the message of settlement being better than litigation never gets through to individual couples.

In another case, another high court judge was told that a couple had already accrued over £3 million in legal costs over their divorce, which has been rumbling on for at least two years, with £13,000 being spent on the latest round of litigation.

There are many reasons, apart from the sheet cost, that demonstrate that litigation is not the answer in divorce. Where there are children involved in the marriage, they cannot possibly come out of the process of litigation unscathed.

In fact, the divorce will almost certainly affect them anyway, but making sure the impact is lessened by making the process as amicable as you can will help to soften the blow.

Trying to reach agreement can be facilitated and you do not have to go it alone. Mediation is being used successfully in many divorce cases, so agreements can be reached with impartial, third party involvement without the need to resort to litigation. Ground will need to be given, however compromise has to be a better option than giving away a sixth of what you own to a solicitor to fight in court over the rest, doesn’t it?

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitors
0207 183 2898

Should There Be A ‘No Fault’ Divorce?

There is a drive towards having a divorce system that offers ‘no fault’ separations and there are a number of reasons for this.

The current system means that you have to have a reason to get divorced and these grounds are decided by the law. There are five to choose from depending on your circumstances, but the very nature of the current divorce process requires blame to be placed on one party.

This does not set the tone for an amicable split, but perhaps starts the process off with a slightly adversarial feel. Having the ability to separate with a no fault divorce, could in fact result in fewer disputes.

The recently published Manifesto for Family Law by Resolution, the association of family lawyers, supports the idea of a divorce being granted after one party gives notice that the marriage is over and then waits for six months. This is a big departure from the current system where you have to wait either two years or five years depending on whether your spouse agrees with the split.

In fact, this very process was piloted back in 1996 when the Family Law Act was introduced, however it was dropped as too many people were separating. It is important to consider though that these people would almost certainly still have divorced, they would have just had to wait much longer to do so.

The current process also requires you to sort out the financial aspects of your separation and any issues around contact with the children before you can get divorced, but in practice this can be difficult, particularly now legal aid has been cut. Many people are completing the divorce process themselves, but cannot afford to get proper legal advice about their financial situation or their children. This may mean living in limbo and staying married or agreeing a very poor settlement just to get out of the marriage.

A no fault divorce however, could happen quickly, whilst you sort out all the financial and family affairs separately.

It remains to be seen whether the idea of a no fault divorce could go any further, but in principal it does seem to be an idea that is worth exploring.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

How Much Does It Cost To Get A Divorce?

Making the decision to end your marriage can be a difficult one and although there are many factors to consider, one of these factors will be the cost of a divorce. Whilst cost will not be the most important consideration, it will feature, and therefore it is vital that you are clear about the cost implications.

First and foremost, you should decide what grounds you will use in your divorce and whether you will be the petitioner or the respondent. To an extent, this really depends on the state of your relationship with your spouse. You may have to wait at least two years if you are going down the separation route, or possibly even five years if your spouse won’t agree to the divorce. This means that you have time to save up to cover the costs of your divorce.

There are a number of costs involved in a divorce. The first are the court fees. In England and Wales, these fees currently stand at £410. If you are on a low income you might be eligible for help with these fees. This is the cost of commencing the process of your divorce.

The next decision you will need to make is whether you need legal representation in your divorce. Whilst some people opt to go through their divorce without legal representation, there is a chance that if you do this, you will miss out an important element of your settlement. This could result in missing out on an element of the financial settlement, such as division of a pension, or you may miss putting an important settlement in place which could affect you in the future.

Most solicitors offer fixed fee divorces which can help you to have a better understanding of your legal costs and providing your divorce is straightforward, you should be eligible for a fixed fee option.

Divorce laws and the cost of a divorce are different depending on where you are in the UK, so it is important that you seek advice from a specialist family law solicitor to obtain exact details about your divorce and the legal cost involved.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 2898

Can I Make A Prenuptial Agreement In The UK?

Prenuptial agreements, also known as prenups, are legal documents put in place prior to a marriage. The prenuptial agreement lays down what will happen to the couple’s assets and how they will be divided should their marriage break down.

In the past, prenups were widely used in the USA, with no legal standing here in the UK courts, other than a document for the judge to consider. However, this has changed and a prenuptial agreement is now recognised as enforceable providing it is fair to both parties.

This change was brought about in the case of Katrin Radmacher, whose £106m was protected by a prenuptial agreement in 2010. Whilst it may seem fatalistic and unromantic foreseeing the end of your marriage, you may have some sympathy with Ms Radmacher making a prenuptial agreement ‘just in case’, but in what circumstances would this apply to your own life.

Interestingly, there are a number of valid reasons to make a prenuptial agreement. As the family structure is changing in the UK, there are many more second marriages. This may mean that money was paid out in the first divorce that you want to protect for your children’s future or your partner or a loved one has leaving you with an inheritance that you want to keep separate from your finances in your current marriage.

Prenuptial agreements are also being used by couples who do not like the way the courts apply their powers to the division of assets during a divorce. Both parties can agree at the outset how their belongings, finances and assets will be divided in the event that they split up.

This is an interesting interpretation of the law and a far cry from the stereotypical view of a wealthy husband divorcing his wife and leaving her penniless as a result of a prenup.

Whatever your reason for seeking a prenuptial agreement, talking it through with your partner is vital, so that you are both aware of the situation early on and that the prenup doesn’t get presented two weeks before the wedding. This could be seen to be exerting undue influence on your partner.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 289

What Is A Clean Break Order?

When getting divorced from your spouse, there are a number of different orders which can be made during the process and one of these is a clean break order. Whilst there is an additional cost involved in getting this in place, there are also a number of benefits to this order being in place. It can offer you some real protection against any future financial claims made against you by your ex-spouse.

Most of us think that once the divorce is settled that it is all over and the responsibility for our ex-spouse is over, particularly where no spousal maintenance payments were put into place. However, this is not actually the case and this is particularly true if your ex-spouse does not remarry.

In the event that you were to come into an inheritance or even win the lottery, the absence of a clean break order could open the door to your ex-spouse taking you to court and taking a share of your good fortune.

A Euro Millions lottery winner, Nigel Page, won £55 million on the lottery but when he divorced his wife he did not have much money and didn’t bother making a clean break settlement. This had massive financial implications for him as his ex-wife took him to court and as she had not remarried, as he had, she won her case and he was forced to pay the settlement to his ex-wife, which totalled £2 million and in addition he had to pay his legal fees too.

Whilst the example of Mr Page is an extreme one, there are other financial claims that could be made against you further down the line, if you fail to obtain a clean break order. This may include access to your pension fund, if this was not included in the original settlement.

If you are going through a divorce now or you are already divorced but you did not put a clean break order in place, you should speak to a specialist solicitor as soon as possible and make arrangements to make one to ensure that you are protected now and in the future.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 289

A Guide To Divorce

With the start of the New Year upon us, some people may decide that now is the time to make a fresh start and to end their marriage. Divorce is something that takes a lot of thought and it can be a long process to get to the point where you feel able to start. This guide should help you understand what happens and when, so you can approach your divorce with some knowledge behind you.

There are two parties in a divorce. One is the petitioner and the other is the respondent. The petitioner is the one who files the divorce petition. In order to file a divorce petition you need to have been married for at least a year and you must provide the grounds for your divorce in the petition.

There are five grounds for divorce and these are:

1. Adultery;
2. Desertion;
3. Unreasonable behaviour;
4. Separation for two years; or
5. Separation for five years (no consent given for the divorce from either you or your spouse).

Once the petition has been filed and the fee has been paid, the respondent will be sent all of the information, including an Acknowledgement of Service (AOS).

At this point there are a number of options to consider. You can file the acknowledgement of service and when you file this you can agree with the divorce, disagree with the divorce or start your own divorce. This is known as a cross petition.

Where you fail to do anything with the acknowledgement of service, these documents will be served in another way.

If as a respondent you agree and file the acknowledgement of service, the petitioner can then apply for the Decree Nisi. This is a legal document issued by a court to say that there is no reason you cannot get divorced.

Once the Decree Nisi has been applied for, the court will grant it and six weeks after that date, a Decree Absolute can be obtained by the petitioner and once this has been issued, the divorce is complete.

Whilst this gives an outline of the legal process of divorce, there are still two people involved in this process, often with emotional baggage and upset and perhaps even children. Seeking advice from a solicitor does not mean that your divorce has to be a battle, it just means that you want to make sure you are protected.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 289

Care Home Fees – Can I Get Them Back?

There has been a lot of discussion about who pays for care once we have a need for more involved care, such as a nursing home. In some circumstances, your relative may have paid for their care in a nursing home but should be entitled to have those costs paid by the NHS instead.

Whilst there are means testing rules in place, many older people are left in a position where they have no choice but to sell their home and use this money to pay for their care. If a relative is paying for their care and has been refused funding from the NHS, it may be worth speaking to a solicitor to see if they can get this decision reversed.

The rules state that since October 2007, if you or your relative need care for a ‘primary health need’ in England, then the NHS must pay these costs and cannot means test you either.

A ‘primary health need’ can be defined as a condition caused by an accident, illness or disability as the main reason for care. Whilst this is the simplest definition, there is a score based system based on priority and also on your condition, which will factor in things like how mobile you are and how stable your breathing is.

Your loved one may have missed out on getting their care home fees paid for if they have been rejected for these benefits in the past, but if their condition has got worse, it is worth revisiting this.

Care for a ‘primary health need’ is not means tested so people who may be wealthy could assume that they would not be eligible for this and therefore never applied. In this case, you may get back any fees you already paid.

In addition, if your relative was discharged from hospital straight into a nursing home, they may never have had their ‘primary health needs’ assessed and you may have assumed that your relative was not eligible, particularly if they were over the means testing threshold or owned a property.

What is important is that you speak to a solicitor as soon as possible to discover if there is a chance to recover the care home fees your relative has already paid.

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

Shak Inayat
Solicitor
0207 183 289