The following information regarding how to file for divorce and important matters to consider during the process has been put together as an initial guide. For further advice contact one of our expert Family Law Solicitors, who will be happy to help. All of our Family Lawyers are members of Resolution which is an organisation dedicated to helping people reach a fair solution, speedily and cost effectively.
You may be tempted to use an online quick divorce service or package. However this route is only really suitable if your domestic and financial situation is straightforward. What often complicates matters are children and finances. Girlings has offices in Ashford, Canterbury and Herne Bay and our Family Law team is available to help and support you.
Grounds for Divorce
The only ground for divorce is that the marriage has irretrievably broken down. However, the marriage must have been in existence for one year and, to establish that the marriage has irretrievably broken down, it is necessary to "prove" one of five facts:
- Your spouse has committed adultery and you find it intolerable to carry on living together;
- Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together;
- Your spouse has deserted you for a continuous period of two years or more;
- You and your spouse have been living separately for two years or more and your spouse agrees to the divorce;
- You and your spouse have been living separately for five years or more, whether or not your spouse consents to the divorce.
The Divorce Process
The process starts with a divorce petition, which contains information about the names of the couple, their addresses, the ages of any children and a statement that the marriage has irretrievably broken down and why (stating one of the five facts above). The petition for divorce may also include a claim for various forms of financial provision.
Divorce proceedings are started by 'lodging' the petition with the court, together with the marriage certificate and the court fee (unless you are exempt from paying this fee). The court will then send the divorce documents to your spouse, who should then respond with an acknowledgement that they have been served with these documents.
All of our Family Lawyers are members of Resolution which is an organisation dedicated to helping people reach a fair solution, speedily and cost effectively.
Defended divorces are rare, and presuming that the case proceeds on an undefended basis the next step will be to make an application for decree nisi. This is "the almost there stage" of divorce. As long as the court does not require any further information, and your spouse does not resist any of the orders you seek, it will probably not be necessary to attend a court hearing for the divorce.
Six weeks after decree nisi it is possible to apply for decree absolute. This is when the divorce is finalised.
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Application for financial relief is made by lodging a form ("Form A") with the court. The court should set a date for a first appointment not less than 12, nor more than 16 weeks after the date of filing the notice. In most cases, it is necessary to have attended a Mediation Information and Assessment meeting to discuss mediation for divorce with a mediator before making this application.
That first appointment is a procedural hearing and it is unlikely that matters will be resolved fully at that hearing. After the application has been lodged it is necessary to gather together information about your financial circumstances, and include them on a document known as "Form E".
After Forms E have been filed, each party may ask questions of the other where issues are unclear, perhaps requiring further documentation to be produced.
At the first appointment the district judge will consider what further directions need to be made for the future conduct of the case. The judge may well refer the case to a Financial Dispute Resolution hearing (FDR).
A Financial Dispute Resolution (FDR) hearing gives both parties an opportunity to reach an agreement, with some guidance from the district judge. However, the solution will be one which is agreed. If the case cannot be agreed at this hearing, a final hearing will take place on another date when the court will hear all the evidence and make orders.
Financial Issues Relating to Children
The Child Maintenance Service deals with many maintenance issues in relation to children. However, it may be possible to pursue top-up maintenance from the non-resident parent through the court for maintenance in respect of a child.
In addition, it is possible to pursue maintenance against a step-parent although additional criteria has to be considered.
Court Orders Available
Maintenance Pending Suit
It is sometimes possible for one spouse to obtain an order for maintenance pending suit against the other. This is maintenance between the date when the petition is lodged at the court and the pronouncement of decree absolute. It is intended to meet urgent and immediate needs in the short term.
Orders Subsequent to Divorce
The Court has wide powers to make a number of different orders in the context of the divorce procedure. The type of orders which are appropriate will depend on the individual circumstances of each case. By way of example some of the more common orders are set out below.
- Maintenance for a spouse
- Maintenance for a child
- Lump Sum: A cash sum can be sought from one party by the other
- Property Adjustment Order: An order that the property be transferred from one person to the other
- Sale of the property
- A Pension Attachment Order
- Pension Sharing Order: The court can transfer part or all of one spouse's pension to the other spouse.
Factors which the court will take into consideration
The first consideration will be given to any minor child of the family who has not reached 18. The starting point is equality and the courts will consider needs, sharing and contribution of both spouses. There are a number of other factors which the court will take into consideration which include:
- The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of each of the parties and the duration of the marriage
- Any physical or mental disability of either of the parties
- The contributions which each of the parties has made or is likely, in the foreseeable future to make, to the welfare of the family, such as looking after the home or caring for the family
- The conduct of each of the parties
- The value of the loss of any benefit that each of the parties might incur on dissolution or annulment of the marriage.
The court is keen to encourage each party to become self sufficient and independent of each other after the divorce, as far as possible. In this respect the court may consider that a clean break order is appropriate.
How Much is a Divorce?
Our Solicitors will always give you an extimate of the likely costs involved and discuss payment options with you to help you budget for your case.
We Work With You
Sometimes a divorce or separation can affect business interests or perhaps involve provision in family Trusts. As a firm we have Trust and commercial specialists whose experience we can draw on to ensure any financial settlement is in your best interests and protects you in the long term.
It is also often the case that clients should seek independent financial advice – here at Girlings we have our own in-house Investment Adviser.
For further advice on the divorce process contact one of our Family Law Solicitors who will be happy to help. Contact us now or call into your local office.