Frequently Asked Questions

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My spouse and I are getting divorced. How do we go about it?

If you and your partner have decided that you want to get divorced, you will have to follow the legal divorce procedure. First you will have to satisfy the 'grounds' for divorce- that your marriage has broken down irretrievably. [See Grounds]. Once you have established the grounds for your divorce, you will have to apply to court, filing a divorce petition setting out why you want a divorce. If your partner accepts the divorce petition, then you can apply for a 'decree nisi'; a document by which the court agrees to the divorce. The final stage in the divorce process is obtaining a 'decree absolute'; this is the legal end of your marriage. You can apply for this six weeks after the court has issued the decree nisi. Once the decree absolute is issued, you are officially divorced.

Will I have to give a reason for divorcing my spouse?

Yes. When filing for divorce in the UK, you will have to prove that your marriage has broken down irretrievably; the 'grounds' for divorce. This is done by proving one of the supporting 'facts' on which the grounds are based. The facts are as follows:

Adultery
That your spouse had sex with someone else, and because of this you cannot continue to be married to them.
Unreasonable Behaviour
That your spouse behaves so badly that you cannot be expected to live together. Domestic violence is included in this category.
Desertion
If your spouse has left you without your agreement or good reason for more than two years.
Two years' separation with agreement
If you and your spouse have lived apart for more than two years, and you both want a divorce.
Five years' separation without agreement
If you and your spouse have been living separately for five years, then you can apply for divorce without their agreement.

Each of these facts come with their own legal requirements, so it is best to speak to a solicitor to advise you on your case.

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Is there a minimum period that we have to be married for before we can get divorced?

Yes. You can only apply for a divorce if you have been married for a year.

What if we want to get divorced/dissolve our civil partnership before a year has passed?

You can only file for divorce once you have been married for one year. This does not mean if you decide you want to break up before a year has passed that you still have to live together. You can apply for a ‘legal separation’ decree from the court to confirm that you have separated, which you can rely on if it is applicable to your case when you come to file your divorce petition. Our solicitors would be happy to advise you on your available options.

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How long will the divorce process take?

From the filing of a petition for divorce to the granting of the decree absolute usually takes between three to six months. However, this depends on the cooperation of your partner. If the court is unsatisfied with the plans you have made for caring for your children, or you cannot agree on the division of your property, the process will take longer.

How do we separate our assets?

Once you have decided you want to divorce, you can start to decide how to divide your assets. You may be able to negotiate an agreement where you both agree how your assets will be split. If you cannot reach an agreement, you can apply to court for 'ancillary relief', where the court will take the marital assets into account and divide them accordingly. An ancillary relief application is filed separately to the divorce application, and can even be filed after the divorce has gone through, however, the best time to negotiate your finances is between petitioning for divorce, and before the granting of the decree absolute.

What is ancillary relief?

During or after a divorce, the court can be asked to settle disputes regarding the division of marital assets if the couple cannot reach an agreement between themselves. The court will consider the assets and then make a financial order, otherwise known as ancillary relief. It covers all marital assets and can order the sale or transfer of property, maintenance payments to be made to a spouse, a lump sum payment, and pension sharing orders. It can also cover provisions for children such as school fees and child maintenance orders.

What will the judge's attitude be when dividing our financial assets?

The judge will try to decide the fairest arrangement possible. The judge will try and create a 'clean break', so that a line is drawn under the marriage, and the financial negotiations come to an end. This will, however, only be done where appropriate. The judge may decide that one partner must make regular payments to maintain the other. It all depends on your personal circumstances.

Who gets the house?

If, during the divorce process, you and your partner cannot come to an amicable decision, then you should seek ancillary relief; a court order dividing your finances. Your assets will be considered in light of your personal circumstances, and, relying on past case law, the judge will present you with an order setting out who should get what. Our solicitors would be happy to speak to you about your divorce settlement concerns

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Who gets the children?

When it comes to who should look after the children, you should first attempt to reach an agreement between yourselves. If you cannot do this, then you can bring a case before the court. The judge will encourage you to reach an agreement during the court proceedings. If you still cannot agree, the judge can make a variety of orders affecting your children's arrangements. The judge can create Contact Orders (who can make contact or visit the child), Residence Orders (deciding who the child will live with), Specific Issue Orders (settling a specific question, for example which school the child should attend), Prohibited Steps Orders (preventing your partner from doing something, such as taking the child out of the country), and Parental Responsibility Orders (this gives someone the rights, duties and responsibilities of a parents and allows them to make decisions regarding the child's welfare).

I am getting married. Can I create a pre-nuptial agreement?

Yes, although you should seek legal advice before you do so. Previously, UK law has not recognised pre-nuptial agreements, but the Supreme Court recently decided that in the right case, prenups can have a compelling weight. This means that should you divorce, the agreement will be taken into consideration, and may be upheld if the court sees it as fair. Our solicitors would be happy to advise you on the implications of creating a pre-nuptial agreement.

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We are getting divorced, but don't want to go to court. How can we avoid it?

If you and your partner work together and reach agreements on your own, then it is possible to avoid going to court. You will have to file your divorce petition to be approved by a judge, but this is simply a procedural requirement and you will not have to attend court. It is advised that you speak to a solicitor to mediate your case out of court to make sure that you and your partner are happy with the decision you have reached.

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What does mediation involve?

If you and your partner do not want to negotiate the end of your relationship in court, then a mediator can help you reach a conclusion. The mediator will act as an adjudicator, and will guide you in deciding why you want a divorce and how to deal with your children and finances. Our solicitors can help you by mediating your case. They would be happy to speak to you about the services they can provide.

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How can we keep our costs down when divorcing?

If you and your partner agree to getting a divorce, and can reach decisions regarding your finances and children alone, then you can avoid going to court. If, however, you disagree on some aspects, then you can opt for mediation, which is still less costly than drawn out court proceedings. Our solicitors can help you by mediating your case. They would be happy to speak to you about the services they can provide.

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How can I dissolve my civil partnership?

The procedure for dissolving a civil partnership is similar to that of divorce. When filing for dissolution, you will have to prove that your partnership has broken down irretrievably; the 'grounds' for dissolution. You do this by proving one of the supporting 'facts' on which the grounds are based. The facts are as follows:

Unreasonable Behaviour
That your partner behaves so badly that you cannot be expected to live together. Domestic violence is included in this category.
Desertion
If your partner has left you without your agreement or good reason for more than two years.
Two years' separation with agreement
If you and your partner have lived apart for more than two years, and you both want a divorce.
Five years' separation without agreement
If you and your partner have been living separately for five years, then you can apply for divorce without their agreement.

What is an amicable divorce?

An amicable divorce is when both parties agree to part cordially. This speeds up the divorce process by keeping tense negotiations to a minimum, which also benefits the parties' feelings and their children. Our solicitors would be happy to mediate your divorce discussions to make them as smooth and pain-free as possible.

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What is a contested divorce?

When you file a divorce petition, your spouse has the right to contest it (unless it is by mutual consent following a two year separation). For example, if you have filed for divorce based on your partner's adultery, which he/she denies. If the petition is contested by your partner, then you could remain married against your will.
Our solicitors would be happy to advise you on your personal circumstances.

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I have been served with divorce papers by my spouse, what should I do?

If this came completely unexpected to you, you should first confront your spouse to establish the reason for the divorce petition. You could attempt to reconcile the marriage if you are unwilling to go through with the divorce. If your spouse is adamant on continuing with the divorce procedure, you should seek legal advice. Our solicitors would be happy to advise you on the action you should take.

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How do I know if my marriage is valid?

In UK law, a void marriage is considered as if it had never taken place. A marriage will be not be valid if:

The partners are related causing their marriage to be illegal
Either party was under 16 years of age
The formal procedures of marriage were not correctly followed
The partners were the same gender at birth (they can enter into a civil partnership but not a marriage)

What does it mean if my marriage is 'voidable'?

A marriage is voidable if one of the following circumstances occurs, and one partner opts to avoid the marriage:

The marriage has not been consummated because of failure of one party to consummate it
The marriage has not been consummated due to the refusal of one of the parties
One of the parties did not consent to the marriage due to pressure or force, were mistaken as to the legal effects of the marriage or were mentally incapable of understanding the effects of the decision
At the time of the marriage one of the spouses was suffering from a mental illness
At the time of the marriage one of the spouses was suffering from venereal disease.
At the time of the marriage, the wife was pregnant by someone other than the husband.

I think I was forced into marrying my partner. What can I do?

In order to be a valid marriage, both parties must consent to getting married. They must both make a free choice, without pressure from any other person. If you were forced into marrying your partner, but are unhappy that you did so, then your marriage is 'voidable', meaning that you can apply to court to have your marriage annulled, and it will be as if you were never married. The judge will consider the reason you want to annul the marriage, and how long you were married before you made the application. If the judge decides you took too long in applying for an annulment, you may have to file for divorce instead. Our solicitors would be happy to advise you on your legal options.

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Can you advise me on marriage and divorce under Sharia law?

Yes. Our solicitors would be happy to advise you on your rights under UK and Islamic law.

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What is a 'get'?

In order to divorce under Jewish law, the husband must give his wife a 'get'; a document dissolving the marriage. The document contains a divorce contract and must be passed from the husband to the wife. For this reason, it is possible for the husband to withhold the get to assert his control over his wife. Without it, according to Jewish law, she is not free to remarry, even if they have a civil law divorce. Therefore, the courts are able to withhold the decree absolute- only granting it on the condition that the husband gives his wife a get. Our solicitors would be happy to advise you on your rights under UK and Jewish law.

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I am not married and am splitting up from my partner. What are my legal rights?

Unfortunately, couples who are not married or in a civil partnership have fewer legal rights than couples who are, no matter how long you have been together. The law works from the presumption that anything owned in your sole name belongs to you alone, but anything owned jointly, you have equal rights to. This covers money, property and other belongings. Unlike married couples or civil partners, you have no right to maintenance from your partner if you split up. Our solicitors would be happy to help you and your partner to reach an agreement.

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What is civil law marriage?

Contrary to popular belief, unmarried couples are not considered 'as good as married'. No matter how seriously you view your commitment to one another, property you own jointly, and children you have together; should you split up, you will not be treated as if you were married. Unlike married couples, whose property is treated as 'matrimonial assets' to be divided equally, unmarried couples' possessions are divided based on who bought what. Our solicitors would be happy to mediate and help you to decide how to divide your assets.

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What is the legal standpoint on separating unmarried couples' property?

For unmarried couples, the law presumes whatever one partner buys, she owns. Anything that was bought jointly, is owned in the proportions of the amount contributed. So, if you paid £300 towards a couch, and your partner contributed £100, you own three quarters of it. You should try and divide all your property yourselves, but if you cannot reach an agreement, then you can apply to court for a 'separation agreement' which will set out who owns what. Our solicitors would be happy to help you decide how to divide your assets.

See our Family products For details on ownership of your home when splitting up, see We are not married. How do we decide who gets the home we own?

What is a 'separation agreement'?

A separation agreement creates a legally binding agreement between an unmarried couple who have ended their relationship. You don't need to create a separation agreement, but they are useful for settling disputes which may arise later on. Our solicitors would be happy to advise you on creating a settlement agreement.

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We are not married. How do we decide who gets the home we own?

There are different ways in which property can be owned by couples:

'Joint tenancy' – this presumes that the whole of the property is owned by both of you together. So, if you sell it on splitting up, you are entitled to receive half of balance.
'Tenancy in common' means that each of you owns a specified share in the property.
If only one of your names is on the title deed, it is possible that the named person might be treated as the sole owner of the property.

These examples might change if you and your partner have agreed to deal with your property and finances in a different way. Our solicitors have plenty of experience in resolving property disputes and would be happy to advise you accordingly.

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My partner and I are splitting up. We are not married. What should we do about our rented home?

First you should decide if one or either of you wish to continue living there. If you both wish to move out, you should look at your tenancy agreement to find out if you have a break clause or when you can end the tenancy.

I have split up with my partner. Do I need to write a new will?

Whether you were married or not, you should write a new will when you split up from your partner. You may find that a promise you have made in your will now becomes invalid and arrangements you have made for the care of your children should be reviewed. For unmarried couples, your will might still be enforceable even if you are no longer living together, so it is a good idea to have it reviewed.

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Can my ex partner take my pension?

As part of the ancillary relief decision, a financial order may be made to split your pension or give a portion of it to your spouse. This will be decided according to your personal circumstances. If you wish to discuss your finance concerns, our solicitors would be happy to advise you

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