Divorce and family lawyers

If a couple are going through a divorce, there are different parts to consider.

The arrangements to bring the relationship to an end are relatively straightforward. The court service allows a no-fault divorce application to be filed online. There is a cost of £593 payable to HMCS and if your solicitor helps prepare the application there will be a cost for their time.

The second and important part of the divorce is resolving the finances. Changing legal status through a divorce can have important financial consequences. Couples should always look to receive advice on the correct way to divide property, savings, pensions, and income. The cost of this work will be the time spent by your advisor at their hourly rate. They will provide an estimate based on your needs and the complexity. It can involve fees for experts to help in understanding and valuation.

Once an agreement is reached, the divorce court will be asked to endorse the terms you have agreed by consent. The fee for such a consent order is £53.

The arrangements to bring the relationship to an end are relatively straightforward. The court service allows a no-fault divorce application to be filed online. There is a cost of £593 payable to HMCS.

Once issued, there is a 20-week period of reflection from the date the application before the next stage is reached. This is the conditional order through which the court confirm that a couple are entitled to a divorce. There is a subsequent waiting period of 6 week and 1 day before an application can be made for the final order. It is on the final order that the marriage comes to an end.

In theory therefore a divorce can be completed in approximately 26 weeks. The current reality is it takes 8 to 10 months.

Couples should always be mindful that the final order changes their legal status. It may therefore be sensible to wait until there is a financial settlement before a final order is made.

The decision to start divorce proceedings can take some time to reach. There is a wealth of information and advice available. The basics rule is that an application for a divorce can be made provided the couple.

• Have been married for one calendar year.
• Confirm their marriage has broken down irretrievably and
• Are able to show that their marriage is recognised in England and Wales. With the international nature of relationships and marriages overseas, this is an important check to make.

Applications can be made both a couple jointly or alternatively by one party. In both instances there is a requirement to produce the original marriage certificate or a certified copy.

The vast majority of the applications for divorce made since 2022 will use the on-line portal and incur a fee of £593. The rules do allow help with fees in the appropriate circumstances and applications can still be made by post if there is limited internet access. Get a divorce: How to apply - GOV.UK (www.gov.uk)

Once underway, the process takes approximately 8 months to complete and deals purely with bringing the marriage or civil partnership to a formal end. The finances are considered separately and will not be dealt with unless a specific request is made. As such it is important to focus on this aspect as the divorce progresses.

When a couple divorce or end their civil partnership, it is important to decide how to separate the family finances.

This is dealt with separately to the divorce process and can include making provision for a share of property; pensions; savings; investments and income.

The circumstances for each couple are unique and there is no off the shelf answer. The guiding principle is that the assets will be shared fairly with the first consideration being the needs of any children.

The law has established a checklist of factors under section 25 Matrimonial Causes Act 1973 that provide guidance on how to achieve a fair division of assets. Matrimonial Causes Act 1973 (legislation.gov.uk). The importance of each factor has been considered and interpreted over the past 50 years.

The majority of cases are settled by agreement. Couples are under a duty to provide full and frank disclosure of their financial circumstances. They often need expert help to understand the effect of their divorce on assets such as pensions. Advisors who practice in this area of work and mediators can help to achieve a settlement.

They can then look to reach an agreement and ensure that an application is made to the court to endorse their agreement within their divorce. This is usually termed a consent order.

If an agreement cannot be reached, an application can be made to the court for a judge to decide the outcome. This can be long term solution or look to resolve short term problems such as interim maintenance or preserving assets that are in danger of going missing.

It is often best to settle the finances, by agreement or court order before the divorce is finalised and the legal status of the parties’ changes.

For couples in England and Wales, child support is governed by the Child Maintenance Service Child Maintenance Service: What child maintenance is - GOV.UK (www.gov.uk).

The CMS provides a formula for the calculation of child support that considers the income of the person making the payment; the number of children, the number of nights spent with the children and the effect of new families. If the CMS are actively involved they will take a fee.

Couples can still ask the court to make an order but only if they agree as to the amount. If they do, the CMS can still become involved one a year has passed.

The court can still make child maintenance orders if the income exceeds the upper CMS limit; if there are special circumstance; a parent lives outside the country or a top up is appropriate. Legal advice should be taken on these exceptions and whether further financial claims can be made for children under Schedule 1 Children Act 1990.

For couples in England and Wales, child support is governed by the Child Maintenance Service Child Maintenance Service: What child maintenance is - GOV.UK (www.gov.uk).

The CMS provides a formula for the calculation of child support that considers the income of the person making the payment; the number of children, the number of nights spent with the children and the effect of new families. If the CMS are actively involved, they will take a fee.

The CMS will cover most payments and can continue until each child is 20 if they are in approved training or education.

The court has the power to make child maintenance orders when the payers income exceeds the upper CMS limit; if there are special circumstance; either parent lives outside the country or a top up is appropriate.

Legal advice should be taken on these exceptions as the amount awarded by the court is not fixed and is discretionary.

A pre-nup (or pre-nuptial) is a legal agreement that couples can enter into before they are married. They are designed to remove any uncertainty if they divorce. Within a pre-nup, a couple can define what they believe to be joint property and set out their financial intentions if they decide to separate.  

There are strict rules on the preparation of a pre nup and these must be followed for the agreement to be valid. If they are followed, the starting point will usually be that the agreement will be followed.

Pre-nups are particularly helpful for couples entering into second marriages. They often have families they want to provide for separately. Agreements are also commonly used where a couple acknowledges there is a disparity in wealth and agree to ringfence all or part of it.

Agreements can also be entered into during the marriage, known as post nups. This may seem unusual but can be important for families following a change in circumstance or inheritance.

The Family Mediation Council state that mediation is a process in which a professionally trained mediator helps a couple to work out arrangements for children and families following separation. What is Family Mediation? - Family Mediation Council. A mediator will help to find the solution that works and explain what needs to happen to make an agreement legally binding. Most couples will still look to take legal advice during the process.

Mediation is a voluntary process, and a mediator cannot be asked to impose a solution or make a judgement.

If a couple wish to take a family matter to court, they will usually need to attend a Mediation Information and Assessment Meeting (MAIM). The purpose of the meeting, which can take place online, it to assess the suitability of the issue to mediation and decide whether the couple wish to proceed.

Mediation can be a less stressful and costly way to resolve disputes in the right circumstances.

Cohabitation is when two people live together as a couple sharing a home and their lives without being married. This is different from being married or being in a civil partnership.

Couples who cohabit will have fewer rights in property and finance than married couples. There is no such legal status of “common law spouse”. This means that cohabitants have limited legal protection and in the event of separation would not be entitled to a share of their partners savings, pensions, or income.

The sharing of the family home will depend in whose name it is held. If a property is held in the name of one partner, the other partner is not entitled to a share unless they can demonstrate a major financial contribution.  If property is held jointly, it is important to understand on what terms. If it is held jointly as tenants in common, the death of a partner would mean that their share does not automatically pass to the surviving partner unless their will says so.

For cohabiting couples, these limited legal rights mean that it is important to record their intentions. This can be done through a formal cohabitation agreement that would detail how finances are to be treated both during the relationship and following a separation.

It is also important to prepare a will to confirm each partners intentions in the event of their death, given the limited rights that exist.

Yes. If you’re separating from a cohabiting partner, you may have rights regarding jointly owned property, children, or financial contributions. Our family law team can advise you on cohabitation disputes, TOLATA claims, and child arrangements.