Fewer than 1% of divorces are defended each year according to recent research by the University of Exeter making contentious divorce cases rare.
The narrowness of our fault-based divorce laws means that one party must either take and accept blame or have long periods of separation before a marriage can be legally dissolved. The momentum of the no-fault divorce movement is certainly increasing but for now, that is not an option for separating spouses to cite.
So, what can you do if you find yourself on the receiving end of contentious divorce petition? Are there any effective strategies you can use? Actually, there are and Jason Stanley from the Stowe Family Law Altrincham office joins as a guest blogger to look at the options.
In order for a Court in England and Wales to be satisfied that two spouses are entitled to have their marriage legally dissolved, they are obliged to plead that the marriage has broken down irretrievably and to choose one of five mandatory facts that best fits the circumstances of that breakdown.
Of the five facts available (adultery, behaviour, separation of two years with consent, five years separation without consent and desertion), adultery and behaviour are fault-based that can carry costs consequences. In other words, the petitioner has the option to state that because of his or her spouse’s behaviour or adultery, that defaulting person should pay the legal costs associated with issuing the divorce suit.
The behaviour of the other spouse is the most common fact cited as the two separation facts (either two or five years) require the spouses to spends periods of time apart and many people seeking a divorce are unwilling to wait for that long. Desertion is an old-fashioned and rarely cited fact and adultery must be proved, which evidentially, can be difficult to achieve if the unfaithful spouse denies the allegation of infidelity. Regrettably, there is no option of citing a no-fault divorce i.e. a divorce requiring little or no period of separation and no blame being attached to the reason for the marriage breaking down. A “quickie divorce”, seemingly the privilege of many a celebrity divorcee, is a complete misnomer and it is not possible to simply inform a court that both parties have come to a mutual decision that the marriage has run its course.
The consequence of this is that to be able to issue a petition immediately, either adultery or behaviour are the only two available grounds that naturally means pleading fault based particulars that can be inflammatory in nature, exaggerated, taken out of context or in some instances, completely untrue. The narrowness of our fault based laws compels a person to blame the other spouse to prove an irretrievable breakdown of a marriage and is in direct conflict with the promotion of an amicable and conciliatory approach that the various family law protocols and our regulatory bodies encourage. The knock-on effect of this is that it can make the separate resolution of children and financial matters more difficult to achieve.
At Stowe, we are experienced family specialists who recognise that navigating through the choppy waters of a divorce is a hugely stressful experience. We realise that it will be very difficult for a client to be expected to try and contain raw emotions when their lives as they know it, be that where they will live, where their children will spend their time or whether they will have enough money in the short and long term, will be difficult concepts to comprehend.
What does happen if a client is the recipient of a highly charged divorce petition (spouses are representing themselves more often these days and will not understand or be aware of the family law protocols) or the pleadings are simply untrue?
A practical and cost-efficient approach is taken at first instance because a sensible client should invest their legal costs budget in the resolution of future financial or children issues. There are several and sensible tactics to employ if this situation arises:
1, If the divorce petition is in draft form and has not been issued at court, then we will certainly seek to robustly negotiate that any unnecessarily inflammatory or untrue pleadings are removed before it is issued. The Family Law Protocol encourages this.
2, If the divorce petition has already been issued at court and processed, then it is open to invite the petitioner to agree to amend the divorce petition and remove those pleadings but this will incur a court fee (presently £95) and additional costs (if represented) to draft and prepare the amendments. This rarely occurs.
3, A common option is to file an acknowledgement of service form confirming that a divorce petition will not be defended but this is conditional upon a supporting statement that is attached to this form. Such a supporting statement will challenge any untrue particulars or will contextualise any outlandish allegations. The skill of the solicitor will be to draft such a statement to ensure that the respondent client’s objections are duly noted and not overdone so as to unwittingly result in a court concluding that the divorce is, in fact, being defended. The attractive feature of this option is that the divorce can progress undefended, legal costs will be kept to a reasonable level and the respondent gets an opportunity to redress the balance to some degree of what will be a one-sided account of why the marriage broke down.The other compelling feature of filing a statement in support is to evidentially address any unfounded allegation of financial misconduct or child welfare that could have repercussions in separate disputes about matrimonial finances or child arrangements. It is, therefore, crucial to seek independent legal advice before completing an acknowledgement of service form. A wary client should not be fooled by the apparent simplicity of this form and it is important to get this right as it lays the foundations for when a judge will come to review the documentation and to consider whether the spouses get permission to have their marriage dissolved or not.
4, The final option is to defend a petition but this is incredibly rare (recent records show that only a handful of divorces are defended each year). This is a specialist and very costly procedure and the system is designed to keep defended petitions to an absolute minimum. Having said that, in a recent and well-publicised case of Owens v Owens  the husband sought to defend a behaviour petition that his wife issued. The judge found in his favour which potentially means that the wife will remain locked in a loveless marriage until she is able to petition once a period of five years has lapsed. Thankfully she issued an appeal against this decision. The decision of the Supreme Court is awaited.
Frankly, if one spouse is desperate to exit what they perceive to be an unhappy marriage, it is ultimately, a futile exercise to prevent that from occurring. What is essential is that you exit your marriage with dignity and with as little damage as possible.
Today, the Supreme Court decided, unanimously, that a former husband was not obliged to pay increased maintenance to meet his former wife’s housing needs as they had been provided for many years before.
Whilst accepting that this was the only issue which the Supreme Court decided that it could or should deal with, a major opportunity has been lost to make the law much clearer as to when a former husband’s obligation to pay maintenance should come to an end, and that is very disappointing.
Graham Mills and his wife divorced in 2002, having been married for about 15 years.
As part of the divorce, Mrs Mills received £230,000, practically all of the couple’s liquid capital, which she would use to buy, outright, a home for herself and their son, and she would not need a mortgage.
Mr Mills was also ordered to pay maintenance of £13,200 per annum indefinitely.
Unfortunately, Mrs Mills made a number of unwise financial decisions so that by April 2015, she had no capital left at all and debts of £42,000. Her health has deteriorated as well.
She applied to the Court seeking an upwards variation in the level of maintenance.
Mr Mills asked the Court to either bring the maintenance to an end altogether or, at the very least, reduce what he was having to pay.
When the Court first heard the applications, the Judge decided to leave things as they were.
Mrs Mills appealed to the Court of Appeal and they increased her maintenance to £17,292 per annum.
Mr Mills appealed to the Supreme Court and he was given permission to appeal on one very limited ground, namely whether a husband in these circumstances should have to pay additional maintenance to meet his former wife’s housing needs when they had already been provided for many years ago (i.e. the payment of £230,000).
The Supreme Court had no doubt that Mr Mills should not have to pay anything more.
The principle reason why Mrs Mills was not able to meet all of her expenses was a direct result of unwise financial decisions that she had made after the divorce so that she was now struggling to pay her rent.
However, the opportunity that has been missed in this case is to give clear guidance as to when a maintenance obligation should come to an end.
As it stands, Mr Mills will have to pay maintenance until the earliest of the following: –
• His death
• Mrs Mills’ death
• Mrs Mills’ remarriage
• The Court bringing to an end, Mr Mills’ obligation to pay maintenance.
As long ago as 1984, the law was changed fundamentally.
From then on, Judges are obliged to consider if and when a maintenance obligation should be brought to an end. The rationale of this change, 34 years ago, was to encourage and promote financial independence if possible.
Inevitably, there will be some cases where this is simply impossible, for example, due to age or ill-health.
In many cases, it should be possible for there to be a termination of financial ties between couples when they divorce, either immediately or over a period of time.
In practice, Judges up and down the country take different views and all too often 1984 reforms are ignored.
Tomorrow morning, Wednesday 18 July 2018, the Supreme Court will be delivering Judgment following an appeal made by the former Husband, Mr Mills, in relation to his maintenance obligations.
When Mr and Mrs Mills originally divorced in 2002, she received practically all of the liquid capital, £230,000. She was also awarded lifetime maintenance of £1,100 per month.
By 2015, Mrs Mills had none of that capital left. She had invested, unwisely, in a series of properties, and while she did have an income of her own, she was suffering from ill-health and suggested she needed increased maintenance.
She applied to the Court for an increase.
Mr Mills responded by seeking a decrease in that maintenance and for the maintenance to come to an end altogether.
The Judge who first decided the case came to the conclusion that everything ought to remain as it was and therefore both parties were unsuccessful.
Mrs Mills applied to the Court of Appeal and they decided that the maintenance should, in fact, be increased to £1,441 per month, not as much as Mrs Mills had wanted but an increase nonetheless.
Mr Mills has appealed to the Supreme Court on the basis that the maintenance ought to come to an end once and for all.
While he accepts that he could afford an increased level of maintenance, he doesn’t see why he should continue to pay maintenance, particularly since he and his former wife have been separated for longer than they were married.
He feels particularly aggrieved because the reason why his former wife was asking for maintenance to be increased and to continue indefinitely was as a direct result of poor decisions which she made after the marriage broke down.
Potentially, the Supreme Court’s decision could be extremely important giving much-needed guidance as to how and when a Court should bring maintenance claims to an end and when former spouses should be expected to be financially independent, which is what the law actually requires Judges to do.
Another week, another ‘forum shopping’ case. Another week, another ‘forum shopping’ case. Only last week I wrote here about the Mantegazza case, in which a wife failed to persuade the English court that her divorce should be heard in this country. Now comes the case Thum v Thum, which again concerned a wife seeking to have her divorce heard here. As Lord Justice Moylan said in his leading judgment in the case: “No doubt behind this preliminary conflict lie [the parties’] competing views as to which courts will be more beneficial when determining the financial consequences of their divorce.” Quite.
The relevant facts, in this case, were that the parties are both German. The husband is said to be a “multi-millionaire”. The parties married in Germany in 2001 and moved to live in London in 2009. The marriage broke down in 2015, and the wife issued divorce proceedings on the 25th of October that year. The wife took no steps to serve her divorce petition on the husband until 19th of January 2016, when her solicitors sent it to the Foreign Process Section of the High Court for service upon the husband in Germany, where he was then residing. On the following day, the husband issued divorce proceedings in Germany.
In the event, the wife had not given sufficient details of the husband’s German address to enable service to take place there. The husband was not served with the wife’s petition until the 27th of February 2016, when he was in England. The wife was served with the husband’s petition a few days later, on the 3rd of March.
The issue of where the divorce should be heard fell to be decided by the relevant European regulation dealing with such jurisdictional matters, Council Regulation (EC) No 2201/2003, better known as ‘Brussels IIa’. The critical question was: which court was first ‘seised’ (i.e. had ‘possession’) of the matter? Brussels IIa states that a court is deemed to be seised “at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent”.
The husband applied to the English court for the wife’s divorce petition to be stayed (i.e. halted) or dismissed, on the basis that the German court was first seised. It was argued on his behalf that the English court was not seised of the wife’s petition when the German court became seised of his petition, as the wife had by then failed to take the steps she was required to take to have service of her petition effected on him.
The husband’s application went before Mr Justice Mostyn in the High Court. He found that the English court was the first seised. The wife had not failed to take any required step, as the rules in England did not stipulate any time period within which the petition should be served.
The husband appealed, to the Court of Appeal. The Court of Appeal dismissed the appeal. Lord Justice Moylan agreed with Mr Justice Mostyn that the English rules did not stipulate any required steps for the wife to take to have the petition served upon the husband.
“The outcome to this appeal is found by determining (i) what steps under English law a petitioner is “required to take to have service effected” and (ii) whether the wife has failed to take those steps. As [I have] set out above, there are no specific required steps. There is only the generally stated obligation to serve.
Accordingly, the wife, in this case, has not failed to take any required step. Further, given that there are no required steps, the fact that the wife gave insufficient details to enable the husband to be served at the address given for service in Germany cannot amount to a failure to take a required step. In my view, the appeal must, therefore, be dismissed.”
Lord Justice Richards and Lady Justice King agreed. Accordingly, the divorce will proceed in this country.
It’s a common concern of litigants involved in financial remedy proceedings: are the details of my case going to be made public? There are many reasons why litigants are concerned about their cases being made public, but perhaps the most common are worries about the effect of publication upon a child, the revealing of details of a business that may be detrimental to that business, and simply the desire to keep personal family matters private.
Obviously, most financial remedy cases are unlikely to attract much media attention. Generally, the only ones that are likely to do so are those involving celebrities, well-known businesses, a matter of public interest, or particularly unusual or salacious facts. However, even if it does not fall into such a category, if your case goes to a final hearing, the judgment may still be published, for example on the Bailii website.
It may not then attract much attention beyond the legal profession, but it may still be found by anyone taking an interest in your affairs, or the affairs of your business.
A recent case set out a very handy summary of the principles in relation to restrictions on reporting cases and the publication of judgments in matrimonial financial remedy proceedings. XW v XH concerned a big-money financial remedy dispute. The case was heard by Mr Justice Baker over some ten days in June last year, although he did not hand down his judgment until December. There then followed a further judgment, only handed down last month, dealing with subsequent applications by both parties for a reporting restrictions order, precluding publication of information relating to the proceedings. This post is concerned with that later judgment.
The parties to the case were married in 2008. Neither is a public figure, although the husband is a successful businessman whose products are said to be “widely used by many people across the world.” The couple have one child, who sadly has a rare, life-threatening condition and also has significant disabilities. The marriage broke down in 2015 and the wife commenced divorce proceedings. The subsequent financial remedy proceedings mentioned above were heard in private.
Mr Justice Baker set out ten principles in relation to the reporting restrictions applications, as follows:
1. The general rule is that hearings are carried out, and judgments delivered, in public.
2. Proceedings in the family court, including financial remedies applications, are an exception to this general rule and are therefore usually heard in private.
3. However, the mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings.
4. In financial remedy proceedings, the parties are required to make full disclosure of all relevant matters, but the information disclosed in accordance with this obligation is confidential, and may not be used for any purpose other than within the proceedings in which the information has been disclosed.
5. Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and a contempt of court unless it is authorised by the judge.
6. In deciding whether to restrict or permit disclosure or publication of information relating to financial remedy proceedings the court has to consider the rights of the parties and children, including the right to respect for private and family life.
7. In cases where there is a public interest in the publication of the judgment which explains or illustrates an aspect of the law or practice, the judge will normally give permission for it to be reported, but subject to anonymisation and deletion of sensitive or confidential information.
8. In some cases, the judge may authorise publication of the judgment without anonymisation or deletion, for example, where a party has provided false information to the court, or where the parties are in the public eye and the details of the matrimonial dispute are already in the public domain.
9. There are some rare cases where the facts of the case are unique or so unusual that confidentiality can only be protected by withholding the judgment from publication altogether (this was argued by the husband in this case, but not accepted by Mr Justice Baker).
10. Lastly, duly accredited representatives of news gathering and reporting organisations are allowed to attend family proceedings held in private, unless the judge orders otherwise. That does not necessarily mean that they are permitted to report confidential and private information disclosed in the proceedings, although there is some disagreement amongst judges and practitioners on this issue, and as a result, the courts are not infrequently invited by the parties to financial remedy proceedings to make a reporting restrictions order.
I’m not going to go through the reasoning of Mr Justice Baker as he applied these principles to this case. Suffice to say that he considered that there was a public interest in the publication of the first judgment, but that the judgment should be amended so as to anonymise the parties, their child, other family members, as well as other pieces of private and/or confidential information.
He also made a reporting restrictions order, prohibiting the publication of various information relating to the case, if it was likely to lead to the identification of either of the parties or the child.
This post may not answer the question as to whether your financial remedy case is going to be made public, but hopefully, it will enlighten you a little. Obviously, for further information, including ways of ensuring that the case is not public by avoiding a court hearing altogether, you should consult a specialist family lawyer.
It’s that time of year again. The school summer holidays are almost upon us, and separated parents across the country are looking forward to taking their children abroad on holiday.
But before you go rushing off to the airport you need to ensure that you are legally permitted to take your child abroad. If you are not, you could be committing the criminal offence of child abduction, if the holiday is outside the UK.
The first thing to consider is: what exactly is meant by ‘abroad’? The answer to that question is actually more complicated than many may think. Clearly, anywhere outside the United Kingdom comes within the definition, but note that ‘United Kingdom’ does not include the Channel Islands or the Isle of Man, both common holiday destinations.
However, there is a further complication. The four countries of the United Kingdom (England, Scotland, Wales and Northern Ireland) do not all share the same legal system. Accordingly, removing a child from one legal system within the UK to another, for example from England and Wales (which share the same system of family law) to Scotland, may effectively amount to the same thing as taking the child ‘abroad’, as we will see shortly.
The next thing to consider is: has a court made a child arrangements order or, in older cases, a residence order, in relation to the child? If it has, then no person may remove the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child (more of which in a moment) or the leave (i.e. permission) of the court.
However, a person named in the child arrangements order as a person with whom the child is to live or, in the case of residence orders, a person in whose favour the order was made, may remove the child for a period less than one month without requiring such consent/permission. Incidentally, you may come across references to ‘28 days’ rather than ‘less than one month’, including on the GOV.UK website. The rule is set out in the Children Act 1989, which refers to ‘less than one month’. However, as the shortest month can be only 28 days, then that is probably the safest rule of thumb to follow.
If the last paragraph does not apply to you then you will need to seek the consent of anyone who has parental responsibility for the child before you can remove them from England and Wales (note that I am not saying ‘the UK’ – consent is still required, for example, to remove from England to Scotland). For obvious reasons, that consent should preferably be in writing. You can obtain the consent from them directly, or through solicitors, for example, if you are not able to communicate with them directly.
The next question is: who (else) has parental responsibility for the child? Usually, this is fairly obvious, particularly as parents who were married both have parental responsibility, but sometimes it will not be so obvious. An unmarried father may have obtained parental responsibility (even if he has not, I would suggest that it would be a good idea to seek his consent, especially if he sees the child regularly), and other people may have parental responsibility, for various reasons. For further details regarding parental responsibility, see this post.
If the person(s) with parental responsibility does not consent and the child arrangements/residence order rule does not apply, then you will need to obtain the permission of the court before you take the child abroad. Note that court proceedings may be avoided if both parties agree to sort the matter out via mediation.
In most cases, the court is likely to grant permission for you to take your child abroad, especially if the holiday is for a reasonable period, and to a destination (not, for example, a place where the child may not be safe). The main problem that arises in cases such as this is where there is perceived to be a risk that the child may not be returned to this country at the end of the holiday. This may particularly be an issue if the parent has family living in the country to which they intend to take the child, and especially if the country is not a signatory to the Hague Convention on Child Abduction, meaning that it could be very difficult to legally secure the return of the child (for a list of countries that are signatories to the Convention, see here). I wrote here back in March about one such case, in which the court refused permission for a mother to take her children to China for a holiday.
The above is of course just a brief summary of the law. For detailed advice, you should consult a specialist family lawyer.
I have written here recently about the phenomenon of ‘forum shopping’, in which a party to proceedings, usually divorce, seeks to have the case dealt with in the country in which they believe the courts will act most favourably towards them. The classic situation is where the wife believes that she will get a more favourable divorce settlement from our courts than from the courts in some other country.
That was just the situation in the case Mantegazza v Mantegazza, which was decided by Mr Justice Moor in May last year, but which has only just been published on the Bailii website.
The facts of the case were that the husband, who is alleged “fabulously wealthy”, was born in Switzerland but lives in Monaco. The wife was born in England. She resides with the two children of the family in Switzerland, but “very much wishes to return to live in England.”
The husband worked in England for about forty years, until 2014. The parties met in England, and began to cohabit here in 1995. They were married in Switzerland in 1996. On the day of the wedding they entered into a pre-marital agreement, under which they agreed “to subject to Swiss law all their internal and external patrimonial relations, regardless of their future domicile”, including accepting the Swiss ‘separation of property’ regime, under which each party retains their own separate property.
The family lived in London until 2006, when they moved to Switzerland. The wife and children continued to reside there for the following eleven years (until the case was heard by Mr Justice Moor), although the husband continued to spend a lot of time working in London.
The marriage broke down in December 2014. The husband moved out of the matrimonial home, initially to a flat in Switzerland, but then moving to Monaco in February 2016.
The wife issued divorce proceedings in this country in July 2016, claiming to be domiciled in England and Wales. In September 2016 the husband issued divorce proceedings in Switzerland. He then filed an acknowledgement to the English proceedings, stating that he intended to defend the wife’s petition and apply for it to be stayed (i.e. halted), on the basis that there was a more appropriate jurisdiction for the divorce, namely Switzerland. He said that, in terms of English law, he was domiciled in Switzerland, but habitually resident in Monaco. The wife similarly applied to suspend the Swiss divorce proceedings.
It fell to Mr Justice Moor to decide where the divorce proceedings should take place.
He found that the ‘more appropriate forum’ for the divorce was Switzerland. He came to this conclusion for a number of reasons, including:
1. The existence and contents of the pre-marital agreement. Interestingly, no mention is made of the fact (as alleged by the wife) that the agreement was ‘sprung’ upon her on the wedding day – normally, the courts in this country will only recognise such agreements if they are entered into a reasonable time before the marriage.
2. The fact that the parties were married in Switzerland.
3. The fact that the last matrimonial home was in Switzerland, and that the wife and children had lived there for the previous eleven years.
4. The fact that there were no significant assets in England, whereas there were substantial assets in Switzerland.
5. The fact that there was no jurisdiction to deal with maintenance in this jurisdiction, but there was jurisdiction in Switzerland.
6. The fact that any order arising out of matrimonial property rights made here would not be recognised in Switzerland.
7. The fact that the wife had issued proceedings here first was a factor in the wife’s favour, but the force of this point was nullified by the fact that the wife had been engaged in negotiations in Switzerland, prior to issuing proceedings here unilaterally and without notice.
It was argued on behalf of the wife that she would not receive ‘substantial justice’ in Switzerland. However, this was not accepted by Mr Justice Moor, who took the view that, notwithstanding the separation of property agreement, she “faces an uphill struggle to satisfy the court that a fully developed legal system such as that in Switzerland will not deliver substantial justice.” Even if she did not receive justice, she could then apply to the court in this country, by making an application for financial provision after an overseas divorce.
In the circumstances, Mr Justice Moor granted the husband’s application for a stay of the wife’s English divorce petition, which would be dismissed on the pronouncement of a final divorce decree in Switzerland.
We are all used to reading the tabloid headlines about the latest warring wealthy couple as they become locked in an emotional battlefield.
Fighting a divorce is complicated and stressful. Whilst we always work with clients to achieve an amicable result (meditation being key), divorce cases do go to court and people do not always fight fair.
Do not assume that your ex-partner will be honest and up-front about their assets. Create an all-inclusive schedule of the assets of the marriage.
If you think assets are being hidden speak to a forensic accountant (we have a team in-house) who is a specialist in identifying hidden assets and bringing them to light. If you are considering hiding assets – don’t do it. They are likely to be found and it could have an adverse effect on the final settlement.
A forensic accountant can also ascertain the true value of business assets including issues around how much income can be drawn from the business, liquidity and tax issues. There are various ways that business owners can manipulate the figures to present a deflated picture of the health of the business. Our forensic accountancy team assist us to ensure that this does not happen.
Assemble your team
You need a good team of people with you fighting your corner and giving you the support you need.
First off, get a good divorce lawyer; look for one with experience of handling contentious cases that have ended in court. Your lawyer will be the voice of reason and help you create the strategy you need to get the best outcome. It is essential that you have confidence and trust in them.
You may need to involve a variety of experts including financial advisors, surveyors, forensic accountants and a good lawyer will be able to guide you on who you need to call upon and when.
Ask your friends and family for support, although please do leave the legal advice to your lawyer. Counselling can also be invaluable to help you manage the negative emotions and anger about the proceedings – keeping you calmer and focused on the case.
Try to avoid moving out of the marital home
If you have children and expect to remain in the family home after the divorce try not to move out. It is important for the children to have stability and routine in what can be a very confusing and uncertain time. There can also be a tactical advantage to remaining in the home. That said don’t live your life for the litigation. If it is unsafe or simply unbearable to remain there consider other options. Perhaps speak to your lawyer before making this decision.
Moving out does not affect your financial claims but tactically you may have less negotiating power if your ex-partner is happy living in the house with the children now that you have moved out.
Be smart, not emotional
It is very important to approach a divorce with a rational and logical mind to make the best decisions for you and the family. Easier said than done, so this is where your divorce team comes in. A lawyer, financial advisors, a counsellor etc can help you to avoid emotionally charged decision making and instead focus on the battle at hand.
How we can help you
At Stowe Family Law, we have a wealth of experience in dealing with these types of cases. If you find yourself in a contentious divorce you will need a lawyer who is robust and fights your corner. Our lawyers are highly experienced in complex divorce cases often involving court proceedings, so we will have the right person for your case.
Whether you want to start divorce proceedings or have been served a divorce petition, knowing where to start and how to get divorced can be daunting.
So, let’s start with this, marriages do end. Couples do get divorced. In fact, more than 100,000 marriages in England and Wales end in divorce a year. So, one thing you are not is alone.
Second, put very simply, divorce is the administrative process you take to dissolve a marriage in the eyes of the law with five clear steps:
Decide on the legal reasons on which you wish to rely for divorce
Complete a divorce petition
Submit the petition to a divorce centre either online or by post with the correct court fee
Apply for a decree nisi (once the petition is acknowledged by your spouse)
Apply for a decree absolute (6 weeks after you have the decree nisi)
And you’re divorced.
However, as in life and relationships, things are never that simple. Whilst it is relatively simple to get a divorce it is important that you make arrangements for assets, property, money, children etc and you will need legal advice to make sure this is handled properly. It is very important that you have considered the financial consequences of your marriage breakdown before you finalise your divorce.
While we always highly recommend that you seek legal advice to protect yourself and your family, here’s a step by step guide about how to get divorced:
1 Decide the grounds for divorce
In English law, you must cite one of five reasons for divorce in support of your claim in your divorce petition that the marriage has irretrievably broken down.
Adultery – for this one it is worth noting that your ex-partner will have to formally admit to an affair otherwise you will need to have to prove it.
Behaviour – The most commonly used reason as it can cover multiple behaviours and issues. You will have to put some details on the petition but the other party does not have to formally admit it. The relevant type of behaviour by your spouse is something which you should not be reasonably expected to live with.
Separation, two years – You have lived apart for two years and the other party agrees to the divorce.
Separation, five years – If the other party will not agree to a divorce, you must have lived separately for five years.
Desertion – this is something more than just separation, it is the abandonment of one party to the marriage by their spouse. It is a ground which is rarely used.
2 Complete a divorce petition
If it’s you who is starting divorce proceedings you are known as the ‘petitioner.’ Your spouse is the ‘respondent’.
You need to download and fill in a divorce petition which is basically an application for divorce. You can download this here.
You will need to gather together details about you and your ex-partner. Please do refer to the guidance notes as they explain what each section means.
3 Submit the petition
Once the form is completed you need to supply your original marriage certificate or get an official copy – you can order one here – your own copies will not be accepted.
It is at this stage payment of the court fee is required (currently £550).
You can submit your petition in two ways: (England and Wales only)
The Court will send you a copy back, one to your spouse and keep a copy on file. Send 4 copies if you have named someone who has committed adultery with your spouse.
You can pay by debit or credit card (the divorce centre will call you to take payment) or by cheque – made payable to ‘HM Courts and Tribunals Service.’
But what if there’s money to be sorted out?
There is a question about making a financial claim on the petition and you just tick a box, however, it is rarely that simple. Very few people know exactly what assets there are. Whilst you can find out what property, assets and income there is by yourself (a process called financial disclosure) we would strongly recommend getting legal advice so you are protected financially. It’s one thing to know what there is, however that doesn’t mean that you will know how those assets and financial resources including income should be distributed.
If you do not get a financial court order, you are leaving yourself open to any financial claims that can potentially be made in the future. It is much better to address those claims at the time of your divorce even if you are just closing them off.
Your application will be checked by the court and if it’s completed correctly you will be sent a notice that your application has been issued, a copy of your application and a case number.
A copy of the application will be served on your spouse who will have eight days to respond to say if they intend to defend the divorce.
If your ex-partner says in a form they send to the court called the acknowledgement of service form that they do not wish to defend the divorce petition then you can apply for a decree nisi which is the interim decree of divorce and basically means the court sees no reason why you cannot divorce.
Once the decree nisi has been pronounced you can apply after six weeks and one day to have the decree absolute granted. This is the formal court document that legally dissolves your marriage.
5. Apply for a decree absolute
You must complete a notice of application to the court who will check the time limits and there are no other reasons not to grant the divorce. If more than 12 months have passed since the decree nisi was pronounced then you will need to file a short statement confirming that you have not reconciled since the date of the nisi and that you have not had any further children together.
The court will send the decree absolute to both parties and you are divorced. Keep it safe, you will need to show if you wish to remarry.
You can find further forms and guidance on divorce, both marriage and civil partnerships here.
How long will a divorce take?
All in all, the process could take around five months to complete – provided both parties do everything required at the earliest opportunity. Delays by either side and disagreements over the financial issues are common factors that slow progress, making the process take longer.
One thing to be aware of when applying for decree absolute is that once it is pronounced you are no longer husband or wife. Should one of you die and the financial issues have not been resolved then you may not be entitled to any widow’s benefits from pensions or life policies. It is always prudent therefore to have considered the financial issues before you decide to apply for a decree absolute.
You can find out more about the divorce process here or please call our Client Care Team on 0330 404 2168 to speak with one of our specialist family lawyers.
“It is a wearily familiar syndrome normally practised by men who believe that their view of the justice of a situation should prevail over that of a court of law”
So said Mr Justice Mostyn in the course of his recent judgment in the case M v F, referring to the policy of non-engagement with the court adopted by the father in the case. I, too, am weary of reading of such cases, although thankfully I no longer have to actually deal with them myself.
I have said here on many occasions that if you are involved in family court proceedings you should engage with the court and comply with its orders and requirements. Failure to do so will only in the end work against you, no matter how strongly you feel that you are right and the court is wrong. Sadly, no matter how often I and many others repeat this message, there will always be some who think they know best.
M v F concerned (amongst other things) a child maintenance application by the mother, in a case where the children were resident in France and therefore child support was not available via the Child Maintenance Service. As indicated, the feature of the case, at least thus far as it is still continuing, is the behaviour of the father.
The judgment relates to a hearing on the 23rd of May, which Mr Justice Mostyn fixed to consider the questions of interim substantive maintenance whilst the case was continuing, and ordering the father to pay a further lump sum to cover the mother’s costs. Considering that it would be unfair to the father to ‘spring’ these matters on him at an earlier hearing dealing with another issue (at which the father had failed to attend anyway, in breach of the rules), Mr Justice Mostyn fixed the hearing on the 23rd of May. When doing so, he specifically ordered the father to attend the hearing on the 23rd of May in person.
The father again failed to attend and also failed to pay sums that Mr Justice Mostyn had ordered him to pay. He was therefore doubly in contempt of court.
Further, the father instructed his solicitors to write a final letter to the mother’s solicitors which stated that: “The father cannot afford to remain within these proceedings and therefore will be withdrawing from the proceedings.” As Mr Justice Mostyn pointed out, that was a flat lie. The father is an exceedingly rich man, having admitted to the court in a statement that the total resources potentially available to him were “around £100 million”. The letter also indicated that the father intended to relocate to America.
Mr Justice Mostyn said (and I will purposely quote this in full):
“It is obvious that the father has now decided to adopt a policy of non-engagement and has decided that he will defy the authority of this court. It is a wearily familiar syndrome normally practised by men who believe that their view of the justice of a situation should prevail over that of a court of law, and who engage in self-help with an arrogant and contemptuous disregard for the rule of law and the authority of the court. Time and again this syndrome is demonstrated, and time and again (although delays and expense are often incurred) the court’s order is, by virtue of reciprocal enforcement in other jurisdictions, almost invariably enforced.”
He went on to explain that the father’s ‘policy’ was not a recent development.
For example, he wrote this to the mother last autumn:
“If you take this matter to court, I will put up a severe and protracted fight and you will get the absolute minimum. Think it over. It will take a few years to play out. I will be unrelenting and highly motivated because your behaviour is deeply immoral and there is nothing I dislike more.”
As Mr Justice Mostyn said, the arrogance of such statements was remarkable, but: “one has seen these so often and the court always deals with them in precisely the same way. The court is not intimidated or overawed by aggressive, hostile, intimidating threats of this nature. The court is here to mete out justice and mete out justice it will, and ultimately, its orders will be enforced. Of that, there can be no doubt.”
In addition to the above, the father had filed a Form E financial statement that indicated, in complete contradiction to his earlier statement, that his assets were only worth some £9 million. The inevitable conclusion reached by Mr Justice Mostyn was that the contents of Form E were deliberately untrue.
In short, Mr Justice Mostyn found that the father was a man of great wealth who could well afford to support his children properly pending a final hearing. He, therefore, ordered him to pay, by 4pm on the 25th of May, arrears of child support of €74,000. He also ordered him to pay €100,000 expenses in relation to a rental property that would be obtained by the mother, and the sum of £215,000 in respect of future legal fees.
The moral is crystal clear: engage with the court and comply with its orders and requirements. The court knows best, not you. Failure to do as the court wills is unlikely to ultimately prevent the court getting its way. On the other hand, it is very likely to seriously damage your case and to cost you considerably, both financially and, where children are involved, in terms of your relationship with them.