Solicitors Guide to Understanding the Divorce Process

Posted on: 24 mins read
Lorraine Harvey

Partner, Family Law

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In 2021, there were 113,505 divorces in the UK, which is 9.6% higher than the previous year. According to the Office for National Statistics, this rise could have been down to the disruption in family courts activities during the pandemic, but there is still an obvious rise year on year. That rise covers an average of 42% of marriages getting a divorce, so knowing where you stand legally is important.

You might think that getting a divorce means you’ll end up in Court. But if you and your ex agree that you both want a divorce and agree on the reasons for your divorce, you probably won’t have to. And, a Fixed Fee Divorce is likely to suit you best.

There are significant benefits to instructing an experienced Divorce Solicitor to help you get a divorce, and overall, it may save you both time, money and stress. Our Divorce Solicitors understand and appreciate the more technical aspects of getting a divorce, whilst shifting some of the emotional burden from you by ensuring that the divorce process is as amicable as possible.

What is Divorce?

Divorce is the process to legally ending your marriage. This means that you will no longer legally joined in any way to your partner. There is a process to follow to separate yourselves from one another, and this begins by one person filing a divorce petition. If you are conducting this side of the proceedings, then you will be known as the ‘respondent’.

At an especially stressful and emotional time, if all you want to do is sort things out amicably, the last thing many of you will need is to be caught in a battle between you and your ex-partner.

It is crucial to approach the divorce process with open communication and a willingness to negotiate, as this can greatly contribute to a smoother process. Seeking professional legal advice from our specialist Divorce Lawyers can provide valuable support in navigating the complexities of divorce and finding mutually agreeable solutions.

Who can get a divorce?

When a marriage breaks down, divorce is often the only option. It is a huge decision and there’s a lot to think about before deciding to get a divorce, but you also need to know if you are eligible to get a divorce in England and Wales.

You can’t get a divorce until you’ve been married for at least one year. Your marriage needs to be legally recognised in the UK and, in most cases, you need to have a permanent residence in England or Wales.

Jurisdiction is a way to decide if the Court has the right to deal with your divorce. This can be decided geographically or by case type.

There are three jurisdictions in the UK. They are:

  • England and Wales
  • Scotland
  • Northern Ireland

To get a divorce in England and Wales, your marriage must be recognised under English Law. If you got married abroad, your marriage has to be recognised as a legal marriage under English law.

In England and Wales, to start a divorce you must show at least one the following:

  1. Both parties to the marriage are habitually resident in England and Wales
  2. Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
  3. The respondent is habitually resident in England and Wales
  4. The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
  5. The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made
  6. Both parties to the marriage are domiciled in England and Wales; or
  7. Either of the parties to the marriage is domiciled in England and Wales
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Can I contest a divorce?

You have not been able to defend a divorce since new laws were introduced in April 2022. The Divorce, Dissolution and Separation Act 2020 was amended to reduce the amount of conflict in a breakdown of marriage by:

  • Removing the ability to make false allegations about the conduct of your partner
  • Allowing you to end the marriage on joint terms

There is no need to provide a fact for divorce following the legislative update which came in on 6th April 2022 which states that all divorces are now 'no fault divorce'. This means that the old 5 reasons below are no longer relevant. It used to be:

  • Adultery – your husband or wife had sex with someone of the opposite sex and you’ve not lived with them for more than 6 months
  • Unreasonable behaviour – your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them.
  • Desertion – your husband or wife has left you for at least two years before you start your divorce.
  • Two years separation and you both agree to the divorce – if you both agree and you’ve been separated for at least two years, you can apply for a divorce.
  • Five years separation – you can apply for a divorce if you’ve been separated for five years, even if your husband or wife does not agree

If you filed for a divorce after the 6th of April 2022, you can only contest the divorce in exception legal circumstances, such as:

  • Jurisdiction: If you or your partner reside in different countries – the court may not be able to deal with your application.
  • If you can show that your civil partnership or marriage was never valid – E.g you can prove that your marriage was not conducted in accordance with local laws.
  • If your marriage has already legally ended – If you have already gone through the divorce procedure in another country.

Our expert team of Divorce Solicitors have decades of experience in handling all kinds of divorce cases. We can support your through the process and advise you on how to handle your situation if you’re feeling defensive about your marriage breakdown, or if you don’t want to take it all on by yourself.

What are my divorce rights?

In England and Wales, there is no such thing as a common-law wife or husband, because under English law a common-law marriage does not exist.

If you’re getting a divorce, it’s crucial to know and understand what your rights are. The divorce process can be straightforward, but there are factors that can affect the process, such as:

  • Agreeing on a financial settlement
  • Dividing property
  • Matters involving any children

Your rights will need to be protected and your interests secured, whether you are the wife or husband, and there are some common rights which may come into question during separation or divorce.

Financial Rights

In divorce cases, there are no watertight rules regarding your financial rights, but when agreeing the financial settlement, certain conditions are better than others.

For example, if you were the main breadwinner in your marriage and your partner stayed home to look after the children, you might receive less financially from the divorce.

When it comes to dividing assets such as the family home it can become a little trickier, but there are a range of options available to you that your Divorce Solicitor can explain to you. When you have that conversation with your Solicitor it’s important to set out your preferences of which assets you might want in your divorce settlement.

Your Divorce Solicitor will also run through the different factors that the Court may take into account, such as:

  • The length of the marriage
  • Your age, and your spouse’s age
  • Which assets are held jointly, and which are held individually
  • Your income and pension provisions
  • Your income and capital needs

Property Rights

You and your ex-partner have a choice when it comes to working out how money and property are divided. If you can both agree on how these will be split, then you can avoid going to Court entirely and save time, money and stress.

When you and your ex agree on how to divide your matrimonial assets, a Divorce Solicitor can make your agreement legally binding, and also come to any agreement on child maintenance at the same time. However, a judge will have to look at any agreement you reach to make sure it’s fair and your interests are met.

Right of Occupation

You have a right of occupation even if you are not a joint owner of the marital home. You have the right to live there, and you cannot be excluded from the household if, for example, your ex decided to have the locks changed. Make sure your interest in the property is protected however and speak to your solicitor about putting a notice against the title for the property.

Rights Concerning Children

Children play an important role here too. If there are children from the relationship, the Court will give priority to whoever is caring for them, and address their needs.

Divorcing parents can have a dramatic effect on the wellbeing of children, as it can cause them a lot of emotional distress. The Court will always put the best interests of the children first.

The children have a right to a relationship with both parents. They cannot be denied this right by the Court or anyone unless there is evidence of physical or emotional abuse by one parent towards the children. The children’s welfare is at the heart of the Court's decision making.

As married parents who have both names on a child’s birth certificate, you will both have what is known as Parental Responsibility for that child. This means you retain the right to have access to information and share in the important decisions on the child’s behalf, such as where they go to school or health matters.

This means that whether you are the birth mother or father, you have an equal right to contact with your child and an equal right to care for them.

Will I have to go to court for a Divorce?

You don’t have to go to Court to resolve your finances in divorce if you and your ex can come to an agreement about who gets what. If you can’t agree then you may need the intervention of a Divorce Solicitor but even then, going to Court will be a very last resort. Most cases settle and agree without Proceedings ever needing to be issued.

A lot of people think that once you are divorced it means that your former partner no longer has a financial claim over any of your assets, but this sadly isn’t true. Unless you or your former partner re-marry, they could make a financial claim against you at any point in the future unless you get a Financial Order, such as a Consent Order, to cut all of your financial ties.

If you and your ex cannot agree on how to divide your finances, you can try:

  • Mediation - A conversational meeting with a mediator who will help you resolve your issues
  • Solicitor negotiation - We will work with you and your ex to reach an agreement. Some of our Divorce Lawyers are a members of Resolution which means we are experts at reducing conflict in disputes
  • Arbitration - A kind of private dispute resolution where your finances will be agreed by one or more arbitrators to save you going to Court. This can seem an expensive option, but it’s quicker and cheaper than Court Proceedings and the costs for the arbitrator can be shared equally between the two of you.

Most divorce financial issues can be resolved without having to take things to Court. Our Divorce Solicitors can negotiate with ex directly or with their Solicitor if they have one.

What is a Financial Order?

A Financial Order is a Court Order that makes any agreements that you and your former partner decide about who gets what in your divorce legally binding.

There are a few different types of Financial Orders that you can apply for, that each do different things depending on what you need from the Court Order. One of our Divorce Lawyers can advise you on what would work best for you and what each of the Financial Orders do.

Without a Financial Order, your former partner could make a claim for any of your assets in the future. For example, they could be entitled to a portion of your pension if you don’t make your agreements on what each of you are entitled to legally binding while you’re getting a divorce.

Once you and your ex agree on how you want to divide your finances, you can apply for a Consent Order which should only take a month or so for the Court to process, providing that it’s fairly straight forward and drafted properly.

There are delays in the Court at the moment due to the coronavirus pandemic, but once you submit your application the work on your part is done.

We offer a Fixed Fee Consent Order as well as a Fixed Fee Divorce. When you choose this option, one of our expert Divorce Solicitors will apply to the Court for you so you won’t have to worry about filling in the paperwork and sending it to Court. This means that resolving your finances can be done quickly and easily.

How long does a divorce take?

Unfortunately, no matter how much you want one, there’s no such thing as quick divorce in England and Wales.

Research shows that the average divorce can take between six to eight months to complete.

You can achieve a ‘quicker’ divorce but that depends on the cooperation, attitude and responsiveness of you and your former partner and also on the complexity of your divorce case.

The usual time frame for a divorce where both people agreed on everything takes around six months to complete. This starts from when the divorce petition is issued to getting the Final Order.

But even if you and your partner comply, agree and respond to everything quickly, delays at your local Divorce Centre or at Court can still make the whole divorce process take longer.

There are certain parts of the divorce process that cannot be skipped. They are:

  • Issuing the Divorce Petition
  • Completing the Acknowledgement of Service Form (This must be done by the person responding to the Divorce Petition. If they don’t complete the Acknowledgement of Service, you will need to prove that they have received the sealed divorce petition and not responded. This can be done in a few different ways. If you cannot prove it, you might need to get a Process Server to serve the divorce petition on them personally and use that as proof of service. This will definitely delay the divorce.)
  • Making the application for the Conditional Order
  • The pronouncement of Conditional Order
  • Making the application for Final Order. You can only do this after six weeks and one day after the pronouncement of Conditional Order. (There are some extraordinary circumstances where we can apply for this time limit to be waived, but these are very rare)
  • Issuing the Final Order.

Even though all the steps above will end your marriage, they do not cut the financial ties you still have with your ex-partner. In all divorce cases, we advise that you deal with the financial matters relating to your divorce ‘before’ the Final Order is made. If you don’t, this can have a negative impact.

Because we advise you to sort your finances out, you may need to delay the application for your Final Order until your matrimonial finances are agreed. This can result in an extended delay to finalising your divorce. This is because the finances are often one of the most combative parts and can take a long time to agree.

How to Find Out What Assets Your Former Partner Has in Divorce

When you’re getting a divorce, it’s not unusual for one of you to suspect the other is not providing full financial disclosure to you and the Courts. You might be worried that your former partner is actively deceiving you by hiding or concealing assets.

Duty to Disclose in Divorce

Each person owes a duty to the Court to make full and frank disclosure as part of financial remedy proceedings in divorce. The duty is not just at the beginning of legal proceedings but is ongoing throughout the entire divorce process.

First, you will both exchange financial statements, also known as Forms E, and financial documents. Documents can include but are not limited to:

      • Bank statements
      • Pensions statements
      • P60s
      • Payslips
      • Business accounts
      • Anything else that could contribute to your matrimonial assets

Once you’ve exchanged financial documents, your Divorce Solicitor will review them for any unusual or irregular transactions or dealings. We have years of experience in helping divorcees with their finances, so we can quickly spot if something is not right.

If your Solicitor finds unusual transactions or if you still feel like your former partner is hiding assets, there are ways you can try to uncover the truth. You could:

  1. Raise a questionnaire – After disclosing your assets, you’ll be given the opportunity to raise a questionnaire on your former partner’s disclosure. If you’re still not happy or satisfied with the response, your Divorce Solicitor can prepare a ‘schedule of deficiencies’ and serve it to your ex, setting out why the disclosure is inadequate or deficient. Sometimes this exercise is enough to flush out the hidden assets.
  2. Get your ex to sign a Form of Authority - This allows you to make a request to a bank or other third party for further information about suspected assets or financial resources. This might be a tricky option as you do need your former partner to sign the form and the Court cannot compel them to sign it.
  3. Make a Specific Disclosure Order – The Court will order your ex to fully disclose their assets. The Court will attach a penal notice to the Order for disclosure. A breach of the Order, for example failure to provide the disclosure, will then give the Court powers to commit your former partner to prison or issue a fine in some circumstances.
  4.  Third Party Orders - If documents are in possession of third parties, for example, business partners, accountants, trustees, the Court can order disclosure by the third party. This might involve bringing the third party into the proceedings.

More and more assets in high-net-worth cases are hidden offshore in sophisticated Trust structures. The Family Courts are now alert to this and are sceptic of offshore Trusts. The Court expects you to give fuller and franker disclosure of any Trusts like these, and will request documents showing how they are created and run.

Some people in high-net-worth cases are also choosing to hire private investigators or forensic accountants to discover hidden assets.

If your ex still fails to provide full financial disclosure, this may be considered as litigation misconduct and result in a Costs Order being made against them.

The Court may also draw ‘adverse inferences’. This means that the Court will assume that your ex does own a particular asset and infer the value of it so that it can be included in the matrimonial pot on your former partner’s side. So, you will get a larger share of the remaining assets to balance out the scales.

If it becomes clear that your spouse disposed of an asset as a way of defeating your financial claim, for example by transferring an asset to a family member, the Court has powers to undo the transaction adding the asset back to the matrimonial pot, even if the value of the asset has been spent.

How much does divorce cost in the UK?

At Simpson Millar, a Fixed Fee Divorce costs £600 including VAT.

Anyone who works for the NHS, Police, Fire Service or the Armed Forces can get a 10% discount on all of our divorce fee options. This includes our Fixed Fees, as well as a free initial 30-minute telephone call with a Divorce Solicitor.

Divorce can be mentally draining, but that doesn’t mean it has to be financially draining too. Our Fixed Fee Divorce option means that there will be no hidden costs to surprise you during the divorce process.

You can apply for a Fixed Fee Divorce in England or Wales if:

  • You and your partner both want a divorce and you’ve agreed who will take the lead; or
  • Your partner agrees to divorce after an initial letter from us and the grounds for divorce itself; and
  • You both live in England and Wales; and
  • You’ve agreed who will pay for the divorce

If you apply for a Fixed Fee Divorce but need any additional work from us, such as settling a dispute, we will always tell you beforehand so you know exactly how much it will cost. We pride ourselves on being open and transparent about our Divorce Solicitor fees.

Why Do I need a divorce solicitor?

Choosing the right Divorce Solicitor to help you with your divorce can help to reduce conflict and get you the best outcome, particularly as you are going through a relationship breakdown.

Getting divorced does come with a cost. Understanding the benefits of having a Divorce Solicitor represent you can help you to understand how valuable this representation is.

It’s a well-known fact that getting a divorce can be a complex and stressful process and we welcome any technological reforms that aim to make the process easier for separating couples.

However, there are certain advantages to using the services of Divorce Lawyers, even if you decide to start the application process yourself online. Here are just a few:

  • Specialist advice – our Divorce Law team are experts and can advise you at each stage, ensuring you’re fully informed throughout. If you ever have a question about any part of proceedings, we’ll only be an email or a phone call away to assist.
  • Obtaining a Financial Order – if you’ve agreed how your finances will be split, we can write the details of your agreement in a Financial Consent Order that will be sent to the Court. If you and your partner disagree, we can negotiate with them or their Solicitor to get you a fair settlement. It’s important that you cut ties financially as your ex could make a claim against you in the future if this is not done.
  • Bespoke service – we can tailor our services to match the level of involvement you’d like us to have. This could range from handling the whole divorce process to simply providing assistance throughout.

Is Ending a Civil Partnership the Same Process as Divorce?

The process and procedure of ending a civil partnership or same-sex marriage is virtually the same as the divorce process following a heterosexual marriage. In normal circumstances, this is a paper procedure via the Courts, starting with a dissolution or divorce petition.

The most significant difference is that when choosing which ground to use in the petition to show the breakdown of your marriage, same-sex couples cannot rely on Adultery.

The reason for this lies in the very traditional and mainly religious basis for current divorce law, which even today still defines adultery as:

‘…voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom is married to someone else.’

So, the definition does not apply to same-sex physical relationships, but that is not to say that an affair, whether emotional or physical, cannot form the basis for a divorce or dissolution. Instead, you can use the Unreasonable Behaviour ground in the petition.

It often comes as a surprise that the last divorce law dates back to 1973, almost 50 years ago, and many people feel that as with many other aspects of Family Law, there needs to be change to bring the law more in line with modern day families.

What is the divorce process 

Sending of 'Acknowledgement of Service' & Divorce petition forms

Upon being issued, the Court will send the divorce petition to the Respondent along with the 'Acknowledgement of Service' form. This is a form which confirms that the Respondent has received the divorce petition. This needs to be completed and returned by the Respondent within 7 days of service.

Serving the Divorce Papers

Should the Respondent fail to file an Acknowledgement of Service, the Petitioner will need to arrange to have the divorce papers personally served on the Respondent. Service must be proved before the next stage of the divorce process can be reached. Another option is to file an application to the Court for the Court to arrange for the divorce papers to be served on the Respondent.

Application for the Conditional Order

If the divorce is undefended, the Petitioner will then file a statement in support of divorce and apply for the Conditional Order. If the Acknowledgement of Service is personally signed by the Respondent, the Petitioner will attach it and confirm identification of their signature.

Divorce papers are considered by a Judge

The divorce papers will then be considered by a Judge. If they're accepted, the application will be listed for a hearing to pronounce the Conditional Order. The parties aren't normally required to attend this hearing, unless one person is defending the divorce or there is a dispute as to costs.

Application for a Final Order

Upon the Conditional Order being granted, the Petitioner can apply for a Final Order - the final decree whereby the marriage is dissolved - after a minimum period of six weeks and one day from receiving. This usually takes a couple of days. However, this is usually delayed until the financial settlement has been approved by the Court.

The marriage is dissolved

Once the Final Order has been granted, the marriage is dissolved and the parties return to "single" status. They are free to marry again if they choose to do so.

How Simpson Millar Can Help You

It is estimated that the divorce rate in the United Kingdom is 42% and whilst nobody likes to get divorced, it’s something that does happen more and more frequently. Those that are lucky to have an amicable divorce are able to have some sort of ‘smooth sailing’ divorce, but there are still many out there that are dealing with difficulties in regards to their relationship breakdown – and you are not alone.

A relationship breakdown is not easy, but choosing the right Divorce Solicitor to help you could reduce conflict and improve the outcome for you. Our Divorce Solicitors are experts at handling any issues that may come up in your divorce. We can handle as much or as little of the divorce process as you would like and we will always be open and honest with you about our fees – contact us on 0808 239 3465 for initial legal advice and help in getting your divorce going.

FAQs

What if I Find Hidden Assets After Getting a Financial Order?

Even after you get a Financial Order, if it comes to light that your ex deliberately or mistakenly failed to disclose an asset in financial remedy proceedings, it might be possible for you to get the Financial Order set aside and have your financial claims heard again.

This can get quite complicated, so you should get expert legal advice.

We know how hard it is to divide assets in divorce, especially if you feel like your former partner is being dishonest. If you’re worried that your former partner is hiding assets away from you, we can help uncover the truth.

What part of my divorce can you help with?

From finances to family or children, our Divorce solicitors are well versed in everything relating to divorce. 

Talk to us about:

  • Divorce financial settlements
  • Court Orders i.e. a Consent Order, Clean Break Order, and Pension Sharing Order
  • Disputes over the family home
  • Family trusts
  • Overseas assets
  • Freezing assets
  • Hidden assets
  • Business advice and bankruptcy after divorce
  • Wealth protection and keeping assets after divorce

Can I Divorce in England and Wales if I Got Married Overseas?

In most cases you can apply for divorce in the UK if you got married abroad.

You can get a divorce in England or Wales if both you and your former partner are habitually resident or domiciled in the UK. This means if England or Wales is your main home, where your life is based in the main, if it is where you intend to return to, or if it is your permanent home. You can also get a divorce if either one of you is domiciled in England or Wales, or if both you and your former partner were habitually resident in either England or Wales, and one of you still resides there.

In addition, you can get a divorce if:

  • You are habitually resident in England or Wales and you’ve resided there for at least one year before the application was made
  • You’re domiciled and habitually resident there, and you’ve resided there for at least six weeks before your application

You can also get a divorce if your former partner is habitually resident in England or Wales.

If one of you has moved overseas then the other must be able to call England or Wales their main home, either where they live now or will live again in the future.

References:

Office for National Statistics. (2021). Divorces in England and Wales: 2021. Retrieved from https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021

Evening Standard. (n.d.). Most divorces in London: UK census data. Retrieved from https://www.standard.co.uk/news/uk/most-divorces-london-uk-census-data-b1062398.html

GOV.UK. (n.d.). File for Divorce. Retrieved from https://www.gov.uk/divorce/file-for-divorce

GOV.UK. (n.d.). Divorce. Retrieved from https://www.gov.uk/divorce

GOV.UK. (2022). New divorce laws will come into force from 6 April 2022. Retrieved from https://www.gov.uk/government/news/new-divorce-laws-will-come-into-force-from-6-april-2022

Legislation.gov.uk. (2020). The Divorce, Dissolution and Separation Act 2020. Retrieved from https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted

Resolution. (n.d.). Retrieved from https://resolution.org.uk/

Ministry of Justice. (2018). How to Get a Divorce. Retrieved from https://assets.publishing.service.gov.uk/media/5b2a4e37e5274a190c1b70c1/d190-eng.pdf

Citizens Advice. (n.d.). Getting a Divorce. Retrieved from https://www.citizensadvice.org.uk/family/how-to-separate1/getting-a-divorce

GOV.UK. (n.d.). Apply for Conditional Order (Decree Nisi). Retrieved from https://www.gov.uk/divorce/apply-for-conditional-order-decree-nisi

Simpson Millar. (n.d.). The Divorce Process Explained. Retrieved from https://www.simpsonmillar.co.uk/media/family-law/the-divorce-process-explained/

Simpson Millar. (n.d.). Finances in Divorce. Retrieved from https://www.simpsonmillar.co.uk/family-law-solicitors/finances-in-divorce/

Simpson Millar. (n.d.). What Are Legal Grounds for Divorce? Retrieved from https://www.simpsonmillar.co.uk/media/family-law/what-are-legal-grounds-for-divorce/

Lorraine Harvey

Partner, Family Law

Areas of Expertise:
Family Law

Lorraine is a Partner at Simpson Millar, specialising in Family Law for over 20 years.

She handles middle to high net value cases, including pension claims and complex trust, and also advises on pre-nuptial and post-nuptial agreements.

Lorraine has unrivalled knowledge of public sector pensions, in particular police pensions, having advised police officers on pension claims for two decades.

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