We have had the biggest overhaul of our divorce system for over 50 years which came into force in April 2022. The aim of this being to introduce a “no fault” divorce process, so as to remove any element of blame and reduce conflict. The overriding objective being to minimise the risk of emotional harm on children which is often caused by parental conflict and prevent the legal process from adding to the heightened emotions otherwise associated with allegations previously needed within the old system.
There are always pro’s and cons with any legal changes and with the new divorce process if one spouse wishes to Divorce the other then they can proceed to issue under the new regime in any event. The only ground for a Divorce is that the marriage has irretrievably broken down and there is no defence to this. So, if your partner intends to proceed with this then there is very little that can be done unless there is a jurisdictional defence preventing the divorce from proceeding.
The question therefore being, if there is to be a Divorce what role do you wish to play in this?
Under the new regime you can have a Sole Applicant or you can both apply as Joint Applicants. This can again help to reduce any animosity and help you to work together when you are looking to address matters such as the children or your financial affairs. If you start the process as Joint Applicant’s then you must work together throughout the whole of the Divorce process unless you apply to the court for this to be changed to a Sole Application.
Either way whoever issues there will be a one off Divorce Issue fee which is currently £593 which will need to be paid unless you are exempt due to you being on a low income in which case you will need to apply for an application for exemption from fees when you submit your application for the Divorce whereby all of your fees or some may be remitted.
What if I want to issue the Divorce Proceedings can I get my partner to pay my legal and court fees?
Under the new procedure you cannot make an application for your partner to pay your legal fees. However, there is no reason why you cannot engage in dialogue with your spouse to try and agree how you are to divorce and how this is to be funded. It may be you can agree for this to be funded between you equally or if it is your partner who wants the divorce they may well be prepared to fund the whole process. If you don’t feel you are able to have this dialogue between you directly then this could be done in mediation.
Do I need a lawyer to help me to issue proceedings?
No you don’t. The system is now all online and has been extremely simplified. It is therefore a matter for you as to whether or not you wish to be supported by a lawyer through this process. However it is always important to remember the divorce has legal implications which affect your financial rights and therefore to ensure you protect your interests in this respect. There may well be jurisdiction issues you need to be aware of or there may be benefits to you issuing proceedings in a different country, where appropriate so would always suggest you seek some legal advice before you embark upon any legal process.
How long will a divorce take?
Once the application has been made online the court will notify your partner who will be given access to the online portal to see the Application and acknowledgement service, confirming that the documents have been received and whether they believe there are any jurisdictional grounds upon which they can defence. Once this has been done your partner does not need to play any further role within the divorce unless of course you make a joint application.
The next steps are for you to apply for a Conditional Order being a declaration that your marriage has irretrievably broken down. You cannot apply for this until 20 weeks has elapsed since the date your application was issued and the application has also been acknowledged or you can otherwise prove to the court that your ex has been served with the application. You may need to ask the court for an order for deemed service if this is the case. The court will notify you of the dates upon which you can make this application but it is wise to diarise such dates in any event.
It is hoped this 20 week period gives you sufficient time to address any arrangements and Co parenting plans for your children and your financial affairs such as what will happen to the family home and pensions. You are encouraged to resolve such matters via an out of court dispute resolution process such as mediation and to seek some legal advice. The courts are not in a position to approve any financial arrangement you agree between you until you have your Conditional order so it is always important to remember these time frames.
You cannot apply for the final stage of the Divorce being your final order until 6 weeks and one day after the date your Conditional Order has been made. Once your Final Order is made you are no longer a spouse. This impacts upon many financial issues such as a Widow/er’s pension within any pension scheme, Inheritance Tax, who your next of kin is and also any will you ay have made. This is why it is important to understand the legal implications of the dissolution of your marriage and to seek some legal advice in this respect.
It is always important to remember from a legal perspective when you refer to a Divorce this relates solely to the status of your marriage alone and does not deal with matters relating to your children or your finances.
Although children are not parties to the divorce, they are often deeply affected by the breakdown of marriage. Since April 2014, the consideration of any children has been removed from the divorce process itself. Consequently, parents are left to pursue appropriate remedies separately in the event of there being a dispute. If there is a dispute in relation to the children following the divorce, it is open to either party to make an application under s8 Children Act 1989 and there are three different types of orders which can be applied under this:-
- Child Arrangements Order – used to regulate when or with whom a child is to live or spend time with.
- Prohibited Steps Order – an order that no step that could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken without consent of the court.
- Specific Issue Order – giving directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility for a child.
Each of these orders will determine a particular matter relating to the child’s upbringing and last until the child reaches the age of 16 (or 18 in exceptional circumstances). However you are encouraged, where appropriate, to try and resolve these matters between yourselves or through mediation and the Government have recently introduced a family Mediation voucher scheme which will contribute up to £500 towards your mediation costs to help you to resolve your children arrangements. This voucher is non means assessed. Legal Aid is also available for mediation for those who financially quality.
When parties separate it is necessary to also consider your financial affairs in order to sever any financial ties. There are a number of financial orders available to spouses and/or children under the MCA 1973 upon marriage breakdown. However, as financial provision between spouses is closely linked with provision for any children, it is also important to appreciate the impact of the Child Support Act 1991 in that the court does not have jurisdiction to make Child Maintenance orders save for a significant minority of cases. The child Maintenance Service is the body responsible for assessing child maintenance in the absence of any agreements we would recommend you visit their website for more details relating to the same Calculate your child maintenance – GOV.UK (www.gov.uk). The court, therefore, retains jurisdiction to deal with cases in which the CMS has no jurisdiction, for example, in relation to step-children and children who are too old to be qualifying children.
The powers of the court to make financial orders fall into two main categories; income orders and capital orders. Income orders are; maintenance pending suit, periodical payments and secured periodical payments. Capital orders are more diverse and include; lump sum orders, property adjustment orders, orders for sale, pension sharing orders and pension sharing compensation orders. Spouses may apply for any of these orders, or indeed all of them, on or after filing of the divorce petition. However, with the exception of maintenance pending suit, orders cannot be made until the Conditional Order and no order will take effect until decree absolute. By contrast, most applications for provision for children may be made and heard at any time, and such orders take immediate effect. Again we would encourage mediation as a means of addressing such issues where appropriate.
In most cases, the arrangements for financial provision for a spouse are finalised after the divorce itself has gone through. However, parties should take care to apply for financial provision before remarrying otherwise you may be debarred from making any such applications.
Helen Pittard is contributor to the ‘Separating With Children 101’, 3rd edition, (Bath Publishing, 2023).