Before divorce proceedings can be commenced the parties must have been married for at least a year. If you are the petitioner you must prove that the marriage has broken down irretrievably by showing one of the following 5 facts:
· Your spouse’s adultery
· Your spouse’s unreasonable behaviour
· Desertion by your spouse for at least 2 years
· Separation from your spouse for a minimum period of 2 years and they must consent to the divorce
· Separation for a minimum period of 5 years, with or without their consent
Usually divorces are not contested. They tend to be procedural and neither party needs to attend at Court. There are 2 main stages – Decree Nisi followed by Decree Absolute (which formally ends the marriage).
Once Divorce proceedings have been commenced, and reached Decree Nisi stage, the Court can make orders for maintenance, payment of a lump sum, property adjustment (sale, deferred sale or transfer of a property) and various pension orders. A separate application to Court is necessary – either by consent of the parties or via a disputed hearing.
This is known as “financial provision” proceedings. An application by agreement will normally be approved by the Court without a hearing and within a few weeks of reaching an agreement. A fully contested Court case can take up to a year, although it may settle at any time.
Below we give further information as to what is considered when making a financial order. Once we have the financial details of both parties then it might be possible to agree a settlement with the other party. If not, then you must attend a mediation session before you can ask the Court to be involved.
Our aim is to try to resolve any financial issues without involving the Court. This is cheaper and less stressful. However, if this is not possible (for a variety of potential reasons), Court proceedings may be necessary. Collaborative Law and Mediation are other options that should be considered before involving the Court. We will discuss this with you if it proves necessary.
If you are the Respondent to a Divorce Petition and a financial order has not been made, you will lose the right to claim financial provision should you remarry. This does not apply to Petitioners as their claim for financial provision is usually contained in the Petition itself.
When the Court is considering what orders to make in relation to financial provision it will consider a number of issues, including, but not limited to:
· Income of the parties
· Financial needs, current living standards and needs of the parties/any children
· Financial assets, savings, houses and pensions
· Earning capacity of each party
· Age of the parties
· Length of the marriage.
Conduct is not usually relevant when dealing with financial provision and only ever in exceptional circumstances.
A pension can now be split under a Court Order (by consent or following a disputed hearing). A percentage of the fund will be referred to in the pension sharing Order. The Order cannot take effect until there is a Decree Absolute. The pension sharing Order will not normally be affected by either party remarrying, entering into a civil partnership or death.
It may be necessary to arrange for a pension expert (with fees involved) to assist with projections/calculations. We shall advise you if this is necessary and obtain an estimate as to the likely cost.
You will also need to obtain details of your state pension entitlement (often dependent upon National Insurance contributions). This can be obtained from the government website www.gov.uk/check-state-pension
Death and Divorce
If you have not already done so, you should consider making a Will now as your spouse may be entitled to your estate under intestacy laws should you die before Decree Absolute.
An existing Will is still valid but Decree Absolute can affect what happens to it. Therefore, you should now consider making a new Will to reflect your current position.
We can pass you to our Wills department to assist in this, and please let us know as soon as possible if you would like us to do that.
Severance of Tenancy
Often the largest matrimonial asset is the matrimonial home. If the property is owned in joint names then it is likely that it is held as “Joint Tenants”. This means that should one of you die, the survivor is automatically entitled to all of the property.
Getting a divorce or making a provision in a Will does not prevent this as property law says that it automatically passes to the surviving Joint Tenant.
If you wish to prevent this you must “sever” the joint tenancy by giving notice to the joint owner and notifying the Land Registry. You can then make a Will leaving your share of the property to your beneficiaries. Please note that severing the Joint Tenancy alone will not ensure that your beneficiaries receive your share of the home. You have to make a Will to be certain your wishes are followed. If you do not make a Will your share in the property will pass in accordance with the Rules of Intestacy.
The Court encourages parties to reach an agreement over the arrangements for children. If this is not possible then mediation may assist.
If a disagreement cannot be resolved through mediation, either party may apply to the Court for an Order (see below). The Court may appoint an officer of CAFCASS (Child and Family Court Advisory and Support Services) to undertake an investigation and that officer will report back to the Court with recommendations as to what is in the children’s best interests.
The Court no longer has jurisdiction to make orders for child maintenance other than where both parents agree to the making of such an order. The Child Support Agency (CSA) also no longer exists.
Instead, if you are unable to reach an agreement concerning child maintenance then an application can be made to the Child Maintenance Service (CMS) to carry out an assessment (see below).
There are additional rules, which may apply, depending upon the education the children require and any other specific needs of the children. Unless you inform us otherwise, we will assume that the children will be attending standard primary or secondary school education.
In England and Wales you must show that a marriage has irretrievably broken down in order to obtain a divorce. Most divorces are uncontested. At the moment (there is a possibility the law may be changing on this) you must prove one of the following five facts:
Your partner had sexual intercourse with a person of the opposite sex and you find it intolerable to live with them. If you live with them for 6 months after finding out about the last act of adultery a divorce will not be granted under this section. To prove this, your partner must either admit to the adultery or you must be able to provide evidence.
You cannot ask for a divorce on the grounds of your own adultery. In such situations you may be able to apply by proving one of the other facts.
B. Unreasonable behaviour
Your spouse has behaved in such a way that you can no longer reasonably be expected to live with them. This is the most common ground for divorce as it can cover a wide range of behaviour. The allegations do not need to be particularly severe but are serious enough to you that you can no longer be expected to live with them.
In most cases it may be better to provide mild allegations so that your spouse will not seek to contest the divorce.
Your spouse has left you with the purpose of ending the marriage and the intention of no longer being with you on a permanent basis. After 2 years you can proceed with a divorce under this ground. You can still claim desertion if you have lived together for up to a total of 6 months in this period, but this does not count towards the 2 years.
D. You have lived apart for more than 2 years and your spouse consents to the divorce
You can get a divorce if you have lived separately for more than 2 years and both parties agree to the divorce. Your spouse must agree in writing but this can be withdrawn any time before decree nisi.
E. You have lived apart for more than 5 years – without the need for the other spouse to agree to a divorce
Living apart for more than 5 years is usually sufficient to obtain a divorce, even if your spouse does not agree to a divorce.
Child Arrangements Orders is the overall term for what used to be known as residence, custody, contact and access orders.
In any breakdown in the relationship between parents the Courts state that the interests of the child must be paramount
Ideally, separating parents would reach an agreement between themselves and the involvement of lawyers would not be necessary. Such agreed arrangements tend to be kept to by all parties in the long term and also allows flexibility, as and when it is needed. The Court does not wish to impose arrangements on parents unless absolutely necessary. Therefore, if an agreement cannot be reached, the Court will only become involved if there has been a mediation session to see if the parties can agree arrangements between themselves.
Who does a child live with?
The priority for everyone involved should be to have the least disruption to a child upon the separation of their parents.
Often a child will live with one parent and an agreement be reached for the non-resident parent to see the child at agreed times. This can involve overnight visits. It depends upon what the parties agree is best for the child. It is suggested that a number of factors be considered:
- Child care arrangements
- Day to day responsibilities of each parent (work commitments)
- And, perhaps most importantly, the wishes of the child
Occasionally the agreement can be that the child splits their time living with each parent but this depends upon practical matters, as well as considering if this is not too disruptive for the child.
When an agreement cannot be reached then the parents are encouraged to meet with a mediator. This is an independent person who is able to provide objective guidance as to what might be classed in the best interests of the child.
We can provide a list of local mediators. A fee is charged by them. www.chester.ukfamilymediationservice.co.uk
Issues to Consider
• The law has a starting point that it is usually in the best interests of a child to have contact with both parents. Parents need to put personal grievances aside to work out what is best for their child.
• The wishes of the child.
• Consistency to help them adapt to the changes in their life. Children benefit from routine, especially when there has been a dramatic change in their life.
• What fits around the routines of all involved? For example: School times, children’s clubs, parent’s work commitments.
• How will agreements change in certain circumstances? Overnight stays, school holidays, taking a child on holiday. Be ready to adapt when things change.
Involvement of the Court
This should be a last resort. Attempts to reach an agreement must have broken down. Mediation must
also have been undertaken and been unsuccessful. Remember that there are also emotional strains on all involved in taking a case to Court, as well as legal costs.
The Court has the power to make the following Orders:
• A Living With Order decides who the child should live with and, in certain circumstances, can be split between the parents. The parent with such an order is expected to actively promote contact with the non-resident parent.
• An Order for Contact can be made by the Court if an agreement cannot be reached.
• A Prohibited Steps Order can be made by the Court to prevent a parent from taking a particular action in relation to the children. This might be not taking the child out of the country.
• A Specific Issue Order is when the Court makes a decision upon a particular point relating to the child’s upbringing. Perhaps which school a child will attend, what religion they will be brought up in or which surname they will be known by.
• Parental Responsibility is the name given to the legal rights and obligations to make decisions concerning a child. Parents will usually have this automatically. However, certain people may need to apply to the Court to obtain this (e.g. unmarried fathers not named on the birth certificate, grandparents, carers).
Child maintenance, also known as child support, is a regular financial payment made towards the normal living expenses of the child of the marriage and is potentially payable even if a parent does not have contact with the child.
The non-resident parent has to make the required payments to the parent whom the child lives with.
Parents are able to make a private agreement between themselves regarding how much will be paid. If an agreement cannot be reached the Child Maintenance Service (CMS)
use a formula to calculate the amount that should be paid.
The Child Maintenance and Other Payments Act 2008
The Child Maintenance and Other Payments Act introduced changes to the system from what was known as The Child Support Agency.
FOR WHICH CHILDREN IS CHILD MAINTENANCE CLAIMABLE?
The CMS can deal with applications for a child under 16, or somebody between 16 and 20 who is not, nor has ever been, married or in a civil partnership, and is normally in full time non-advanced education.
The CMS will not handle cases involving, for example, payment of school fees, maintenance for stepchildren, and those people over the maximum earnings limit that a person can be assessed for.
The rates are as at January 2021 (please check government information for up to date figures - see below for the website):
1. FROM THE GROSS INCOME – FOR THE FIRST £800 PER WEEK
Here, the non-resident parent will be paying:
12% - 1 child
16% - 2 children
19% - 3 or more children
2. FROM THE GROSS INCOME –EARNINGS BETWEEN £800 – £3,000 PER WEEK
Here, the non-resident parent will be paying an additional:
9% - 1 child
12% - 2 children
15% - 3 or more children
The gross income is defined as gross income minus pension contributions.
Further details can be found on the government website for child maintenance with an online assessment possible. www.gov.uk/calculate-child-maintenance
Financial Consent Orders
Once divorce proceedings have been commenced then either party has the right to apply to the Court for an Order to resolve financial matters. This right continues even after Decree Absolute. However, it is usually advantageous to delay applying for Decree Absolute until financial matters have been settled, as there are rights that would be lost once the marriage ends (eg: spousal pension, inheritance under intestacy). Therefore, the divorce will usually progress to Decree Nisi and then be put on hold until financial matters are resolved.
Whilst you might not want to deal with financial matters at the same time as the divorce, it is usually advisable to do so. Re-marriage can affect the right of a Respondent to apply. Also, the longer time goes on, the more likely it is that the financial situation of the parties may change; this may produce an unexpected or less predictable result.
Usually parties wish to have a “Clean Break Order” meaning all financial matters are ended now without leaving it open for either party to return and claim something extra in the future. The only area where it is not possible to dismiss claims is in respect of child maintenance. This will always remain open, so long as the children are classed as dependent.
It may be that neither party wants to claim anything from the other. It would still be wise to enter into a Clean Break Order to reflect this. It prevents a party changing their mind in the future and pursuing a claim.
Even if an agreement is reached, but the parties do not want an Order, it would still be wise to obtain an Order reflecting this. It prevents potential problems in the future. Also, certain parts of the agreement might need an actual Court Order to take place (such as issues relating to a pension).
If an agreement is reached then a “Consent Order” can be sent to the Court for a judge to approve. Financial information relating to both parties, and their living intentions, is also given. The Judge will usually approve the Order without the need for a hearing where both parties are legally represented. There might be a short hearing for the Judge to ensure that an unrepresented party is aware of the consequences of what they are doing. If one of the parties has not been truthful then an application in the future can be made to set aside that order.
If an agreement cannot be reached then mediation must be considered before asking the Court to make a decision. Only then is the procedure commenced to involve the Court leading up to a final hearing when a Judge makes a decision.
For any advice to be given on a settlement, or for the Court to be involved, then full financial disclosure from both parties is necessary. Please see below for details of the information and documents you should start to obtain now.
The purpose of a financial settlement is to try and balance out the financial arrangements equally and fairly between the parties. It is like having a set of scales with each party putting their assets on either side until it is as balanced as possible.
The Matrimonial Causes Act 1973 has a number of issues that must be considered when dealing with financial provision, these include, but are not limited to:
• Income of the parties
• Financial needs, obligations and responsibilities
• Current living standards and the needs of the parties and any children
• Financial assets, savings, houses and pensions
• Earning capacity of each party
• Age of the parties
• Length of the marriage.
• Contributions each partner brings to the marriage (not just financial)
Conduct is not usually relevant when dealing with financial provision and only ever in exceptional circumstances.
Pension Sharing Orders
Pensions are increasingly becoming one of the largest matrimonial assets, together with the matrimonial home. It is now possible to obtain an Order that will share out a pension.
Experts may need to be instructed to value the pension. Depending upon the type of scheme then a spouse can receive a credit for a share of the other spouse’s pension within that scheme. Or it may be possible to actually transfer the value into another scheme. Independent Financial advice would need to be obtained. A pension sharing order is expressed as a percentage of the fund, rather than an actual value, as the amounts in pensions can go up and down.
The Order for pension sharing is not valid until Decree Absolute.
The shared portion of the pension will be treated as that person’s own pension from then on, with appropriate tax implications. When they die, it is their own pension for the purposes of inheritance. The pension of the former spouse will continue less the payments made out under the Court Order.
The pension sharing order is not affected by either party re-marrying or death. This is a one-off transfer to the spouses own fund/entitlement.
Rather than transfer a pension, a party may prefer to be given the benefit by way of a larger part of another matrimonial asset.
It often takes time to obtain information for a pension (the Current Equivalent Transfer Value) so we suggest that you start the process now. You can also obtain details of your state pension entitlement. www.gov.uk/check-state-pension
Likely documents/information that should be obtained now:
To speed matters up, please provide a list of all your assets/liabilities, whether in your sole name or held jointly with another (as they may apply to you) and please start to obtain the following documents/proof, in order to confirm the position:
1. Valuations of your property/properties (at least 2 appraisals each from independent estate agents).
2. Up to date mortgage redemption figure for any property.
3. All bank account/building society statements dating back at least 6 months.
4. Any stock, shares, bonds, ISA, TESSA, PEP, NSI premium bonds and other investments you have an interest in.
5. Any life or endowment policies. Current valuations and maturity date.
6. All cash savings.
7. Individual and joint assets worth over £500 (cars, jewellery etc).
8. All debts.
9. Any DSS benefits (including but not limited to child benefit, tax credits).
10. Details in respect of any pension schemes:
• Name and address of plan provider
• Plan/policy number
• Type of scheme (final salary of defined contribution)
• Cash Equivalent Transfer Value (CETV)
• Any lump sums payable and at what times
• State pension entitlement
11. Your 3 most recent wage slips together with your latest P60, for all employment.
12. Confirmation of whether you have remarried or are living with another person and brief details of their finances.