Divorce and Children – Everything You Need To Know
Ending your married life and making the move from marriage to ex-partner can be difficult for both involved. No one gets married to get divorced and going from planning your lives together to planning separate lives can be an emotional time.
Divorce with kids can be even more difficult as it is important to try and maintain a good relationship with your ex-partner for your children. Sometimes one parent wants to get on and the other parent feels differently.
Divorcing your spouse when you have children can be a very difficult and emotional time. There is so much more to think about when there are young children to consider, you want to make sure you handle your divorce proceedings as best as you can as a parents divorce can be traumatic for children if it isn’t handled properly.
Today, we have expert family law solicitor, Nadine Moaddel, from Mancini Legal in Horsham, answering frequently asked questions on divorce in both a video format and blog.
I Am Thinking of Leaving My Spouse, How Do I Get A Divorce?
You must be married for at least 1 year before you’re entitled to apply for a divorce. If you’re petitioning for divorce, you have to choose the reason (‘ground’) you’re relying on.
There are 5 grounds that are recognised by the court:
- Unreasonable behaviour
- Adultery
- 2 years’ separation with consent
- 5 years separation (no consent)
- Desertion
The first two are classified as ‘fault-based’ grounds.
You can either apply for the divorce yourself or with the assistance of a solicitor. Either way, you’ll need to send three copies of the petition to the court, together with your original marriage certificate, and will need to pay a court fee of £550 (unless you’re claiming an exemption).
If you’re applying online, you’ll need to complete the petition and scan a copy of your marriage certificate to submit to the court.
You will be referred to as the ‘petitioner’ and your spouse is the ‘respondent’
Once the petition has been approved (‘issued’) by the court, a copy will be sent to you and to the respondent. The respondent will be given the opportunity to reply to the petition, completing and returning their paperwork (‘acknowledgement of service’)
Provided the respondent doesn’t contest the divorce (amicable separation) or wish to challenge any costs claimed, you’ll receive a notification from the court (‘certificate of entitlement to decree’) confirming you’re able to apply for the next stage of the divorce.
You’ll need to make an application for the judge to formally consider your case, and will need to submit a statement in support of your case. Provided the court are satisfied with the paperwork, they will set a date for the hearing, which parties don’t usually need to attend.
Once the ‘decree nisi’ has been granted by the court, you’ll have to wait for 6 weeks and 1 day before applying for the final stage of the divorce (‘decree absolute’). If you don’t apply for the decree absolute after 4 ½ months the respondent can apply to the court (but a fee is payable).
Do we have to go to Court?
No. Provided your spouse doesn’t contest the divorce, and costs can be agreed, there is no need to attend court.
What Is Unreasonable Behaviour When It Comes To Divorce?
Unreasonable behaviour is any behaviour displayed by your spouse that you find intolerable to live with, and that has led to the breakdown of your marriage.
A good solicitor will help you draft an unreasonable behaviour petition that will satisfy a judge, so that the petition is issued. It’s always advisable to send a draft petition to your spouse before you submit the particulars of behaviour to the court, so that they don’t come as a surprise.
What is a no-fault divorce?
Currently, there are limited grounds that you can rely on if you’re looking to divorce without apportioning blame on the other party. You either have to be separated for a period of 2 years or more (and your spouse consents to the divorce) Or, if they don’t consent, and you don’t want to use a fault-based ground, you’ll have to wait for 5 years before petitioning.
No-fault divorce is due to come into effect from April 2022. In the meantime, if you’ve been separated for less than 2 years, you’ll have to rely on a ‘fault-based’ ground (unreasonable behaviour or adultery).
Contrary to popular belief, apportioning blame has no impact on the financial or children matters, provided you make no admissions to the behaviour alleged. If you’re not sure how to respond to an acknowledgement of service where blame has been made, due to your alleged behaviour, it’s wise to seek legal advice.
How Do I Get A ‘Quickie’ Divorce?
The so-called ‘quickie-divorce’ that’s referred to in the tabloids is a myth. All divorces follow the same procedural process. If you’re hoping to finalise your divorce swiftly, the best way to do so is to apply online with the assistance of a solicitor, ensure that you have co-operation from your spouse before you file the petition, and have a general agreement in place regarding the division of finances.
Usually, the delay in applying for the final stage of your divorce (‘decree absolute’) is because finances haven’t yet been agreed. A solicitor will review and advise on any agreement reached, and can even assist with negotiating a settlement if you’re yet to do so. They’ll then prepare a consent order, which records the agreement formally, and assist with the financial paperwork. Once you and your spouse have signed the consent order and associated documents, these are lodged at court, for the judge to review (and approve).
In the majority of cases, it’s unwise to apply for the decree absolute, until financial matters have been formally approved by the court.
How Much Does A Divorce Cost?
It depends. Divorce costs are recognised as separate to any costs incurred in financial or Children Act proceedings. If you petition for divorce without the assistance of a solicitor, and your spouse also doesn’t instruct one, then you’ll just have to pay the £550 court fee. You may agree to split the divorce costs with your spouse equally, or may even be entitled to an exemption (depending on your financial circumstances).
If either party instructs solicitors, then these will increase costs. Many firms offer a fixed fee package, provided the divorce isn’t contested. It’s worth finding a firm that does offer such an incentive so that your costs are clear from the outset.
Financial advice is charged for separately, and the costs will depend on whether you’re able to reach an agreement amicably. Solicitors usually charge by the hour, so your costs will depend on their level of involvement. If either party issues formal proceedings, then the costs are likely to escalate.
Who Gets The House In A Divorce?
The courts primary objective is to ensure that any financial settlement is fair and equal. ‘Equality’ in this context doesn’t mean that the assets of the marriage are split 50:50. What is ‘fair’ will depend on the circumstances of the case.
The courts will have regard to the Section 25 Factors which be found in the Matrimonial Causes Act 1975. The first consideration of the court is the children of the family. The parties’ age, health, earning capacity and future resources also are relevant. Therefore, the court will have to look at all the circumstances of each individual case, and make an assessment as to how assets should be divided.
Most cases are predicated on ‘needs’ and therefore, ensuring each parties basic needs are met, are of primary importance. Sometimes, there just isn’t enough money to rehouse both parties. The court have the power to make orders for the transfer of property into one parties name, they can even defer sale- until a ‘triggering event’ occurs (e.g. when the youngest child reaches the age of 18 and completes tertiary education), the court may also make orders for sale.
Other assets, such as pensions, are also likely to form part of the matrimonial pot. There are a limited number of cases where pensions or pre-acquired wealth can be ‘ringfenced’ from the financial settlement (this approach is unlikely to be given much weight, particularly in needs-based cases).
Your solicitor will explore the different options with you. If you’re able to reach an agreement, the court have the power to formalise this. If you’re unable to agree, financial proceedings are issued and matters do not settle before a final hearing, the court will have the power to decide what happens to the family home. By that stage, each party is likely to incur significant legal costs, and therefore it’s advisable to avoid matters escalating to a final hearing.
Who Gets The Child In A Divorce?
Child arrangements should be discussed separately. That’s because they have their own sets of rules and procedures, that are separate from financial and divorce matters. Usually, parties are able to reach an agreement on the future child arrangements following a relationship breakdown and may wish to formalise these by way of a parenting plan. The advantage of this is that it sets out the intentions of the parties at the outset, and allows for flexibility (as these plans aren’t legally binding). It’s a good idea to have these discussions at the outset. Depending on your child’s age, and provided you and your spouse remain amicable, you may want to ask what their preference would be so that their wishes and feelings are taken into consideration. Ultimately, it will be down to you as parents to decide what is in a child’s best interests.
If you’re unable to agree, you may ultimately wonder, usually, who gets the kids in a divorce? The answer is that there is no parent “more likely” to be given custody based on gender alone. You can consult a mediator (a neutral third party) or a solicitor to determine child arrangements. As a last resort, either party can apply to the court for a ‘Child Arrangements Order’ and there are likely to be several hearings before a final order is made. The disadvantage of making a formal application is that costs can quickly escalate and can delay parties from ‘moving on’. The court may advocate an approach whereby not making a formal court order is seen as most appropriate (‘the no-order principle’). If an order is made, it can be more restrictive, and may even exacerbate tensions between parents that already find it difficult to communicate.
There are plenty of co-parenting apps out there, that are designed to facilitate discussions between parents, to enable parties to co-parent effectively. At the outset of your matter, your solicitor should provide you with a guide to resources that can help.
What Divorce Settlement Will Each Party Be Entitled to? How are Finances Split?
The courts primary objective is to ensure that any financial settlement is fair and equal. ‘Equality’ in this context doesn’t mean that the assets of the marriage are split 50:50. What is ‘fair’ will depend on the circumstances of the case.
The courts will have regard to the Section 25 Factors which be found in the Matrimonial Causes Act 1975. The first consideration of the court is the children of the family. The parties’ age, health, earning capacity and future resources also are relevant. Therefore, the court will have to look at all the circumstances of each individual case, and make an assessment as to how assets should be divided.
What Happens if we Cannot Agree on the Finances?
If you’re unable to agree, and you have exhausted all possible avenues- such as mediation and solicitor negotiations, your solicitor may recommend that you initiate financial proceedings. Your solicitor will explore the different options with you.
Bear in mind that if matters don’t settle before a final hearing, the court will have the power to make an order, and neither party will have control over this. By that stage, each party is likely to incur significant legal costs, and therefore it’s advisable to avoid matters escalating to a final hearing.
Financial Settlement – Fair and Equal
The courts primary objective is to ensure that any financial settlement is fair and equal. ‘Equality’ in this context doesn’t mean that the assets of the marriage are split 50:50. What is ‘fair’ will depend on the circumstances of the case.
The courts will have regard to the Section 25 Factors which be found in the Matrimonial Causes Act 1975. The first consideration of the court is the children of the family. The parties’ age, health, earning capacity and future resources also are relevant.
Therefore, the court will have to look at all the circumstances of each individual case, and make an assessment as to how assets should be divided.
How Does Divorce Affect Children?
Divorce can be a very challenging time for children, and all children cope with the news of divorce differently. Whilst it can be stressful and emotional for everyone involved, for children, it can feel as though their entire world has been turned upside down. The idea of their parents divorced can leave a lot of uncertainty. Divorce can be particularly challenging for younger children between the ages of 6 and 12.
Through a divorce, providing support to your children should be your number one priority. Children may even blame themselves and feel guilty for the divorce, so it is important that you reassure them that this is not the case. Being patient and listening to your child and settling any concerns can help your child through this time. It is important that you reassure your child that both parents will still be present in your child’s life and that you both still love them very much.
For more information about how to tell children about a parental divorce, and how to support them through the parental separation, click the link below:
https://www.helpguide.org/articles/parenting-family/children-and-divorce.htm
If you would like to speak to your local family law solicitor, why not check out our directory?