Family Law FAQs
No, there are alternatives to divorce. Some people, for instance, opt for judicial separation rather than divorce. This can be considered if there are religious obligations to divorce. Judicial separation ends the legal duty to live together but neither party can then remarry. This should be carefully considered and discussed with a lawyer.
In order to obtain a divorce, there are certain criteria that must first be met. Firstly, you must have been married at least one year and you must show that your marriage has broken down irretrievably. Irretrievable breakdown can be evidenced in 1 of 5 ways:
- Adultery
- Unreasonable behaviour (that your spouse has behaved in such a way that you can’t be expected to live together)
- That your spouse has deserted you for or at least two years
- That you have been living apart for two years and your spouse consents to a divorce
- That you have lived apart for five years
In brief terms, the divorce is started by one party (the ‘Petitioner’) lodging a petition with the court. This document (the ‘Divorce Petition’) sets out the details of the parties, the marriage and the grounds for divorce. If there are children, the court requires a further form (called a ‘Statement of Arrangements’) to be sent with the petition along with the court fee. Once received the court will send a copy of the divorce petition and other documents to the other party (the ‘Respondent’). The Respondent will then be expected to acknowledge service of the divorce petition. Once an acknowledgement has been received a judge will look at all documents and may decide to grant ‘Decree Nisi’. This is the first step towards obtaining a divorce and is the court’s acceptance that the marriage has broken down irretrievably. 6 weeks and 1 day from the granting of Decree Nisi the petitioner can apply for Decree Absolute. Once granted, Decree Absolute brings the marriage to an end. Between the stages of Decree Nisi and up until Decree Absolute the marriage is still legally binding. The parties should therefore make a will at the earliest opportunity. Before applying for Decree Absolute, the usual practice is to agree settlement of matrimonial assets as well arrangements of any children of the marriage.
We will charge an hourly rate for all work undertaken. A divorce normally costs between £500 – £750 plus the court fee to issue the petition. It is important to note that assistance with financial settlement and children matters will be in addition to the divorce costs and depends on the amount of work that is done. Legal Aid is sometimes available although now very rarely, however we do not undertake Legal Aid work.
The divorce itself normally takes between 2 and 4 months. However it may take longer to agree a financial settlement and/or resolve any child arrangement issues. It is recommended to agree a financial settlement before applying for Decree Absolute (the document which officially dissolves the marriage).
The law provides that, in most cases, each party must leave the marriage on an equal footing and both parties’ income and housing needs must be met. This means that each party must receive a 50/50 share of the matrimonial assets and they must have enough income to live and they must have somewhere to live. The assets must be divided in a way that achieves this principle.
Parties are encouraged to engage in amicable negotiations in an attempt to resolve matters quickly, cheaply and stress free. Sometimes parties are unable to resolve their differences through negotiation.
In most cases, it is now compulsory for parties to enter into mediation. However this is not necessary in cases involving domestic abuse or in emergency situations. Mediation allows both parties to speak openly with an independent person to come to an arrangement without involving the courts. Once an agreement has been reached, it might be necessary to put the agreement into a consent order; this will then become a binding court order.
If parties cannot agree a settlement in relation to the division of matrimonial assets then one party must make an application to Court. Upon receipt of the application the Court will make an order directing all parties to do certain things before a hearing date. This includes disclosing all of your finances and providing documentary evidence, producing a chronology, a questionnaire and a list of the issues e.g. the parties cannot agree the property valuation. The first hearing is known as a First Appointment Hearing, which is used for the Judge to give direction on any issues. If there are no issues then the hearing is used as a Financial Dispute Resolution. Here, the Judge will hear both parties positions for division of assets and will give the parties an indication as to whom he/she favours. The parties can then use this information to continue to negotiate. If an agreement is reached, it will be put into a consent order and the Judge will make it a binding court order. If the parties still cannot agree a settlement then the Judge will list the matter for a Final Hearing. At the Final Hearing, both parties will give evidence and the Judge will decide what the division of assets will be.
We will charge an hourly rate for all work undertaken. It is difficult to give an estimate of costs as it depends on the method chosen to resolve matters. We will however provide you with monthly updates in respect of our fees. It is important to note that assistance with Divorce and children matters will be in addition to the Financial Remedy costs and depends on the amount of work that is done.
Like costs, it is difficult to provide an estimate of how long it takes to resolve financial division of matrimonial assets matters. It depends on the method of resolution and whether parties can reach a swift amicable settlement, engage in lengthy negotiations, mediation, or whether they cannot resolve their differences and place matters in the hands of the Court. Whichever option, we are here to guide, and advise, you through the process.
Disputes in relation to children are quite common following the breakdown of a relationship. In most cases, it is now compulsory for parties to enter into mediation. However this is not necessary in cases involving domestic abuse or in emergency situations. Mediation allows both parties to speak openly with an independent person to come to an arrangement without involving the courts. Once an agreement has been reached, it might be necessary to put the agreement into a consent order, this will then become a binding court order.
It is often the case that mediation is not successful for one reason or another. When this happens it is necessary to make an application at court. There are a variety of orders which the court can make including child arrangement orders which can determine where a child is to live, contact with a parent (or non-parent) and any specific issue concerning a child (such as change of surname, and schooling). When dealing with a child arrangement application, the court’s paramount consideration is the welfare of the child(ren). In order to apply for a child arrangement order, you must have parental responsibility for the child(ren) concerned. If you do not have parental responsibility but wish to apply for a child arrangement order, you must first ask the court’s permission.
Parental responsibility is a legal term meaning the legal right and responsibility over a child. Without parental responsibility you cannot have a say about a child’s education, medical treatment or any decision affecting their daily life. Married parents automatically obtain parental responsibility (if married when the child is born). If the parents are not married, a mother automatically obtains parental responsibility from birth. However an unmarried father obtains parental responsibility by the following:
- By being named as father on the child’s birth certificate with the consent of the mother and the certificate was issued after 1st December 2003
- By entering into a parental responsibility agreement with the mother
- By applying to the court
- By being appointed guardian of the child
- By obtaining a residence order
- By marrying the mother
Parental Responsibility is not necessarily exclusive to parents. For instance, a grandparent can obtain parental responsibility as can a Local Authority.
Local authorities have responsibilities for children in need. If a child is considered to be ‘in need’ the Local Authority must take reasonable steps through the provision of services to prevent children in its area suffering ill-treatment or neglect. This can involve providing accommodation and implementing a child protection plan. In serious cases, a child could be made the subject of a care order or an emergency protection order. If a Local Authority has identified concerns, it is essential you seek legal advice at the earliest opportunity. You will be given the chance to make submissions to social services and, in some cases, to a court. Legal aid is largely still available for these types of cases. However, it is important to note that we at St Helens Law do not carry out legal aid work.
We do not undertake Legal Aid work at St Helens Law. It is always important to see if you are eligible for legal aid as, depending on your ability to pay, you may be able to access legal aid to get help to resolve your family dispute. Legal aid is also available for cases involving domestic abuse and child abduction cases. The law concerning legal aid changed drastically in April 2013. For further information visit GetOnline Advice or telephone 0845 345 4 345.