Divorce Law and Procedure
Divorce is tough for all concerned. Filing for a divorce can be daunting, and the court forms are not designed to be easy to complete. However, if your divorce or dissolution is amicable and your finances are straightforward, you should be able to sort everything out relatively quickly and easily. You still need to go through the legal process so you are legally divorced or have dissolved your civil partnership, but usually you will not need to use a solicitor.
The purpose of this book is to enable those involved in a divorce to avoid expensive and painful court battles, and at the same time obtain a fair financial settlement and not get screwed. It explains the court process to having a marriage or civil partnership dissolved, and will help you to understand your rights and the law and procedure relating to how financial matters are decided on divorce.
The book is a comprehensive guide to divorce, separation and splitting up written in clear, easy to follow language, divided into 3 sections. The first section deals with the law and procedure to apply for a decree of divorce and how to avoid hidden traps. The second section deals with how property and financial matters are decided at the end of a marriage and how to obtain a fair and proper settlement. The third section is headed ‘Tips and Tricks’ and is advice from an experienced family lawyer on dealing with problems which can arise and what to do in a dirty divorce.
The emphasis throughout the book is on reaching your own agreement, but where this is not possible, the book will guide you through how matters can be decided by a family court. It is written by a former solicitor who has spent his career in the war-zone of the divorce courts, with advice and answers to the questions which matter most to those going through a divorce in England and Wales.
CHAPTER 1. FIRST THINGS
We are not going to ask you whether you are sure – but are you? Have you thought about just separating? Maybe you should read Chapter 8 now, which explains how you can enter into a separation agreement and then think things out by living apart, or apply to the court for a judicial separation, which would allow you to apply to the court for financial orders if needed, but still leave you married. The decision to end a marriage, especially if children are involved, should not be taken lightly.
If you are resolute in your decision to divorce however, there are important things you need to think about. You have to work out what is going to be right for you and any children you need to make arrangements for. Your objective has to be not to end up with a broken family, but with an extended family. Do not just desperately think about getting out from under an unhappy and stressful situation and marriage as soon as possible. There are a lot of things you need to think through carefully. You do not want to trade one set of problems for others.
You must try to put emotion aside and think through the reality of living apart from your ex. How is this going to affect your financial situation? Will you be able to maintain yourself or will need to claim maintenance? Where are you going to live? Will you need to make other housing arrangements? Would you be able to get your ex to leave the home or where would you go if you decide to leave? And just as important as these questions, ask yourself whether you can handle the consequences of being divorced and what your plans are for the future.
None of these should be spur of the moment decisions simply to get away from a difficult relationship. You could end up making things worse rather than better, and just exchanging
one set of problems for others. Getting divorced does not just involve the legal steps we can advise you upon in this book, but also emotional and practical issues.
Once you have decided to end your relationship, you must get organized. This will help you feel more secure emotionally and financially. It is going to be time-consuming, and this list will not cover everything for everyone. You will however need to:
open your own bank account;
amend your will if you have one, and if not, consider making a will;
make a list of everything in the house, such as furniture and personal items and all other
family assets, including vehicles and other property;
prepare a list of debts and money owed on HP and credit agreements, credit cards and
bank overdrafts et cetera, for which you are liable;
if you own your home, find out how much is owing on the mortgage;
if you are renting your home, find out whose names are on the lease;
make a note of household accounts in your partner’s name;
consider whether you need to open new accounts for personal items such as your mo-
There are documents and papers which you should secure and hold the originals or take copies whilst you have the opportunity:
the marriage certificate,
your passport and passports for children,
bank statements for the past 12 months,
last tax return and notice of assessment,
titles of ownership and property deeds,
pension Cash Equivalent Transfer Value (CETV),
car registration, engine number, vehicle identification number and current value,
mortgage and property details (e.g. council rates),
insurance policies (e.g. home, contents, car, and superannuation details).
You must give serious and realistic thought to your financial situation and how much money you are going to need to live on. What benefits are going to be available? Consider whether you need to go back to studying, seek or change your employment or start your own business.
Read Chapter 5 below, which deals with the legal steps you may need to take early on. Are any of these going to be necessary, and if so, are you prepared and feeling confident enough to take them?
Part one 7
Chapter 1. First things 7
Chapter 2. Applying for a divorce 9
Dissolving a civil partnership 10
Chapter 3. Grounds and entitlements to a divorce 11
Unreasonable behaviour 12
Two years separation and consent 14
Five years separation without consent 14
Chapter 4. Defending a divorce and cross-petitions 16
Chapter 5. Early considerations 18
Sever the joint tenancy 18
Close joint bank accounts 19
Feezing orders or injunctions 19
Register a matrimonial home rights notice 20
Maintenance pending suit 21
Chapter 6. Preparing and issuing your divorce petition 22
Effecting service. 22
Chapter 7. Applying for pronouncement of your divorce 25
Chapter 8. Separation, judicial separation and nullity 28
Separation agreements 28
Judicial separation 28
Part two 31
Chapter 9. Financial orders 31
Chapter 10. The orders available 33
Maintenance pending suit orders 33
Periodical payment orders 35
Property adjustment orders 36
Lump sum orders 38
Orders relating to pensions 39
Orders which cannot be made 39
Chapter 11. What the court must take into consideration 41
Section 25 Matrimonial Causes Act 1973. 41
Chapter 12. Clean break orders 49
Chapter 13. Family mediation 51
Legal aid 52
The MIAM 52
The mediation process 53
In court mediation 55
Children and mediation 55
Chapter 14. Consent orders 57
Procedure for applying for a consent order 57
Chapter 15. Applying to the court 59
Completing the application form 59
Chapter 16. Preparing for the first directions appointment (FDA). 60
Form E 60
Statement of issues 61
Preparing a summary note 63
Chapter 17.The first directions appointment (FDA) 64
Chapter 18. The financial dispute resolution appointment (FDR) 67
Chapter 19. The final hearing 69
Preparing a witness statement 70
Chapter 20. Costs in matrimonial proceedings 71
Part 3. 72
Chapter 21. Tips and tricks 72
Chapter 22. Should you instruct a solicitor to act for you? 80