Divorce and Separation

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info@nelawllp.com

Divorce and Separation

You can get a divorce if you have been married for at least a year and your relationship has irretrievably broken down. You must have a marriage that is legally recognised in the UK, and have a permanent home in England or Wales.

There are 3 main steps to getting divorced:

  • File a divorce petition - you have to apply to the court for permission to divorce, and show reasons why you want the marriage to end.
  • Apply for a decree nisi- if your spouse agrees to the petition, you'll get a document saying there is no reason why you cannot divorce.
  • Apply for a decree absolute - this legally ends your marriage - you need to wait 6 weeks and a day after you get the decree nisi before you can apply.

If you would like to instruct NE Law to assist with just the divorce or separation we can do so on the basis of an agreed fee. This will not include court fees or any other disbursements. We will fill in all of the necessary forms for you, correspond with your estranged partner and court. Divorce and separation is extremely stressful and frankly horrid therefore at NE Law we believe that we can take some of this stress away from you.

Conducting your own divorce

You can of course arrange your own divorce without involving solicitors especially if you agree on the reasons for a divorce, how you'll look after any children, how you'll split up money, property and possessions. If you agree on these things beforehand, you will not have to go to a court hearing, and the divorce paperwork should be fairly straightforward.

If you wish to conduct your own divorce you will need to fill in a divorce petition to start a divorce. This can be obtained from hmctsformfinder.justice.gov.uk

It will be necessary for you to include your full name and address, your husband or wife's full name and address and the marriage certificate. It must be the original certificate or a copy from a register office. Include the names and dates of birth of any children (no matter how old they are).

There are 5 ways in which you can show that the marriage has irretrievable broken down. These are adultery, unreasonable behaviour, separation of 2 years with agreement, abandonment and separation of 5 years. If you divorce on the basis of adultery and you name the person your husband or wife was unfaithful with, they will get copies of the paperwork. You do not have to name this person and often it is easier and more straight forward not to.

Once you have drafted the divorce petition you will need to send it to court and you will have to pay a £550 court fee to start a divorce. You may not have to pay this fee if you're on benefits or receive a low income. If so it will be necessary for you to complete form EX160 and provide evidence of your income. The maximum monthly income is £1085 although this is increased if you are looking after children. If you instruct NE Law it is likely that we will start the divorce proceedings at the Family Court at Durham.

Divorce proceedings issued against you

If your husband or wife has started divorce proceedings against you, the court will send you a 'divorce petition' and will also get a notice of proceedings form and an acknowledgment of service form. It is important that you keep the notice of proceedings form, which tells you the case number and what you should do next. You need to respond by filling in the acknowledgment of service form. If you don't respond within 21 days, your husband or wife can continue with the divorce as if you've agreed. If you agree with the divorce petition, fill in and return the acknowledgment of service form to the court within 8 days, and the divorce will go ahead. However if you disagree with the divorce petition fill in the acknowledgment of service form and return it within 8 days and fill in the part that says you're defending the divorce. The court will send copies to your husband or wife. After you return the form, you have up to 21 days to say why you are defending the divorce. This is called 'giving an answer'. To do this, you must fill in the answer to a divorce petition and you will have to pay a 245 court fee.

Court Proceedings

When a divorce is defended or both sides file divorce petitions, the court will usually hold a hearing to discuss the case. You and your husband or wife will usually have to attend to try to come to an agreement over the divorce. Get legal advice if there's going to be a court hearing or if you intend to defend the divorce petition.

You can apply for a decree nisi if your husband or wife does not defend the divorce petition. A decree nisi is a document that says that the court doesn't see any reason why you cannot divorce. If your husband or wife does not agree to the divorce, you can still apply for a decree nisi. However, you'll have to go to a hearing at the court to discuss the case, where a judge will decide whether to grant you a decree nisi.

To get a decree nisi, fill in the application for a decree nisi. If your husband or wife is defending the case, fill in section B of the form, saying you want a ‘case management hearing' before the judge. You must also fill in a statement confirming that what you said in your divorce petition is true.

There are 5 statement forms and you must use the one that covers the grounds you have given for your divorce ie adultery statement, unreasonable behaviour statement, 2 years' separation statement, desertion statement or 5 years' separation statement. Attach a copy of your husband or wife's response to the divorce petition.

If the judge agrees, the court will send you and your husband or wife a certificate of entitlement to a decree and a decree nisi.

After 6 weeks and a day you can apply for a ‘decree absolute' to end the marriage. You may be sent a ‘notice of refusal of judge's certificate' form, saying why you can't divorce. The form will tell you what to do next. The judge may want more information in writing, or you may have to go to a court hearing. Again get legal advice if there is going to be a court hearing.

The decree absolute is the legal document that ends your marriage. As stated you need to wait at least 6 weeks after the date of the decree nisi before you can apply for a decree absolute. The delay gives you a chance to discuss finances and other issues with your husband or wife before the marriage comes to an end. You will need to apply within 12 months of getting the decree nisi because if you do not you will have to explain the delay to the court.

To apply for a decree absolute, fill in the notice of application for decree nisi to be made absolute form. A decree absolute should not cost you anything but if you have started your divorce before the 1st July 2013 there is a cost of £50.

If your husband or wife started the divorce, but they haven't applied for a decree absolute, you can apply. You'll have to wait an extra 3 months, on top of the standard 6-week delay, before you can do this. To apply, fill in an application notice form and you will have to pay a court fee and go to a court hearing with your husband or wife.

Once you have applied for the decree absolute the court will check that time limits have been met and there are no other reasons not to grant the divorce. The court will then send you both a decree absolute. Once you get the decree absolute, you are divorced, no longer married and free to marry again if you wish. You must keep the decree absolute safe because you will need to show it if you remarry or have to prove your marital status.

Court Costs

In respect to court costs the government is constantly changing them therefore all costs quoted were correct as of 4th August 2016. Therefore we strongly recommend that you check Fees for civil and family courts before applying to court for the most up to date court fees.

Financial Settlements

In most cases a financial settlement can be reached without the need for court. Where money is involved there is often disagreements and this is where NE Law can hopefully resolve these matters as amicably as possible.

Generally speaking if you instruct NE Law to assist with a financial settlement we will request from you and your estranged partner:

  • 3 months' payslips
  • 12 months bank/building society statements
  • 12 months credit card/store card statements
  • Mortgage Statement and valuation of the house if you have one.
  • CETV of your pensions
  • Valuations of any shares/investments/savings etc
  • List of any personal belongings worth more than £500

Once these have been provided we can then consider what is fair and reasonable for both sides and also establish what that needs of the parties are. If agreement is reached NE Law can then draft a consent order and apply to court. There are a variety of settlements which can be reached including maintenance payments, lump sum agreements or pension sharing orders. Generally a clean break order is the best outcome but this sometimes cannot be achieved.

If agreement cannot be reached both parties will need to attend mediation. NE Law can make a referral to a mediator on your behalf. Hopefully mediation can resolve any issues which still arise and we can then draft the consent order.

Of course there are some cases where there is no other alternative but to attend court. If this occurs NE Law will represent you at court and will endeavour to ensure that you receive the best outcome possible.

Again at NE Law we try to offer an agreed fee for assistance with regard to financial settlements. However if the case is particularly complicated or contentious then we will charge our hourly rate. Please do not hesitate to contact us for a quotation as to costs and arrange a free thirty minute consultation.