Posts

What Does Conditional Order Mean In Divorce Proceedings?

/in /by

The Conditional Order (previously known as the Decree Nisi) is granted by the Court once the 20 week cooling off period, which is from the date of issue of the Divorce Application, has passed.

The Conditional Order is the first stage in the divorce proceedings and parties are not legally divorced until one or both parties apply for the Final Order (previously known as the Decree Absolute). This can only be applied for six weeks after the date of the Conditional Order.

Once the Final Order is granted by the Court, this legally brings the parties’ marriage to an end.

Please note however, that even though the Final Order has been granted in the divorce proceedings, this does not stop either party making financial claims against the other.

We are experts at handling divorces from the simplest to the most complex, so when you are ready to proceed please do call and we will provide you the professional support you need at a difficult time in your life.

How do I start divorce proceedings?

/in /by

Divorce proceedings are now dealt with through an online court portal. Since this procedure came into force, you do not now need to site grounds for divorce i.e. adultery or two years separation, only that the marriage has broken down irretrievably.

You can only now apply for divorce through the court portal by making a sole application yourself or jointly with your spouse should you wish and provided you are both in agreement.

The initial steps consist of completing an online form with basic details of the parties and the marriage. You will also need to upload a full, clear, colour copy of your marriage certificate onto the court portal. If you do not have your original marriage certificate, you can apply for this online. There is usually a small fee for this and it should come through within a few weeks.

When applying for divorce, there is a court fee payable in the sum of £593 however, if you are on low income, you may be able to apply for fee exemption. In order to check if you are eligible for this, you need to complete a further online form called ‘How to apply for help with fees: EX160’. Once completed, if you are eligible for full fee exemption, you will be notified there and then and given a code to use when completing your divorce application. However, depending on your income, you may be required to pay a part payment towards the court fee but again, you will be notified of this.

Once you have uploaded your divorce application, the Court will then review this and provided this is completed correctly, they will then issue your divorce application and provide you with a unique 16 digit case number to use on all correspondence in connection with these proceedings.

We are experts at handling divorces from the simplest to the most complex, so when you are ready to proceed please do call and we will provide you the professional support you need at a difficult time in your life.

Emma Bilsborrow​​​​, Legal Executive, Partner

Do I need a solicitor for agreement on dividing up the finances in a divorce?

/in /by

You can complete the financial agreement yourself or ask a solicitor to do it for you. Though cheaper to apply for it yourself, for the reason that it requires cooperation from both parties it is better to instruct a solicitor to review the terms of the consent order (the legal document which confirms your agreement) before you file it with the court.

When deciding on a settlement the Court will take into account a list of factors that are contained in Section 25 of the Matrimonial Causes Act 1973 to include, but not limited to, income, earning capacity, property and other financial resources which each of the parties to the marriage has, or is likely to have in the foreseeable future, including each parties’ earning capacity, and the financial needs, obligations, responsibilities, and resources of the spouses, both during the marriage and after the marriage has ended. A settlement must be both fair and reasonable otherwise it will be rejected by the court.

Unless you have a Financial Remedy Order (the court order which sets out the financial arrangement between divorcing spouses) which is sealed by the Court, then irrespective of the time which has elapsed since your Final Order (previously called Decree Absolute) concluding the Divorce you remain at risk of a financial claim from the other party to include claims against pensions.

We are experts at handling divorces from the simplest to the most complex, so when you are ready to proceed please do call and we will provide you the professional support you need at a difficult time in your life.

Emma Bilsborrow​​​​, Legal Executive, Partner

How long does a divorce take?

/in /by

A no fault Divorce allows for someone to make a sole application, which is then served on your former partner, or a joint application which a couple submits together.

An application for a no fault Divorce can be made online. All that is required are the names and addresses of both parties and the original or a certified copy of the marriage certificate.

If a sole application is made, the Court will send a copy of the Divorce Application (previously known as the Divorce Petition) to the other spouse. They are then required to confirm receipt of the Application and send an Acknowledgement of Service Form back to the Court within 14 days. The timescales relating to the no fault Divorce process are relatively straightforward. It is estimated that no fault Divorce takes a minimum of 26 weeks.

There are now two separate waiting periods. There is a 20 week waiting period for the Conditional Order to be issued (this was formerly known as the Decree Nisi), and a further 6 week waiting period for the Final Order (this was formerly known as the Decree Absolute).

The time it takes to finalise the Divorce will also depend on other factors, including the division of finances.

A no fault Divorce cannot be contested, except in limited circumstances where the Court feels empowered to investigate further, this might include where a Court does not have jurisdiction to deal with the Divorce, or the marriage is not valid.

We are experts at handling divorces from the simplest to the most complex, so when you are ready to proceed please do call and we will provide you the professional support you need at a difficult time in your life.

Emma Bilsborrow​​​​, Legal Executive, Partner

How much does a divorce cost?

/in /by

Divorce on its own is seldom expensive. The bulk of costs are usually accumulated resolving the matrimonial finances. How much it will cost to resolve financial issues typically depends on how complicated the finances are and how cooperative the other person is. Divorce costs in England and Wales can start from £500 to £650 plus 20% VAT and disbursements of £593 (no VAT).

Divorce costs in England and Wales will differ depending on the level of knowledge of the family lawyer. The applicant in the divorce proceedings should budget somewhere in the region of £500 – £650 plus 20% VAT for divorce costs. If you are the respondent in the proceedings, then the fees you pay are likely to be much lower and are unlikely to exceed a few hundred pounds.

Disbursements are expenses incurred by a solicitor whilst carrying out work on behalf of a client. In relation to divorce proceedings (for most people) this will simply be the divorce application fee (or disbursement) of £593 (no VAT). Other disbursements that could be incurred are paying out for a certified copy of your marriage certificate if you have lost your original marriage certificate or organising for a translation of the marriage certificate if the certificate is in a language other than English.

We are experts at handling divorces from the simplest to the most complex, so when you are ready to proceed please do call and we will provide you the professional support you need at a difficult time in your life.

Emma Bilsborrow​​​​; Legal Executive, Partner Family Department

Can you apply to shorten the period between issuing divorce proceedings and obtaining the conditional order?

/in /by

The Divorce, Dissolution and Separation Act brought into effect a minimum 20-week period from the commencement of divorce proceedings to a conditional order* being made. It was thought that the 20-week wait would allow more time for divorcing couples to agree practical arrangements where reconciliation is not possible and divorce unavoidable.

A national firm broadcast last week that it had successfully applied to the court to shorten the 20-week window for its client, who has serious and life-limiting health issues.

The application itself was about safeguarding financial independence and the notion that any delays may have adversely affected the client.
Section 1(8) of the Matrimonial Causes Act states that the court, dealing with a particular case, can shorten the 20-week period; however, the legislation does not provide a list of reasons why an exception can be made. The firm in question worked on the basis that under the old rules, applications could be made to shorten the time between a decree nisi and decree absolute (6 weeks and 1 day) on health grounds.

A conditional order was made 10 weeks after the divorce application was issued.

*Conditional order replaced decree nisi on 6th April 2022. Conditional order acts as the first of two decrees that you will need to obtain to get divorced. 6 weeks and a day after the court makes a conditional order you may apply to the court for a final order (previously referred to as decree absolute). This legally end the marriage.

Divorce And Making Your Will

/in /by

What happens to your Will if you get divorced or end your civil partnership?

When you divorce or end your civil partnership your former spouse/civil partner is treated as having died before you. Your former spouse/civil partner will not inherit anything from your estate unless your Will specifically stated that divorce or dissolution of a civil partnership would not affect the gift that was detailed in the Will.

In addition, if you had named your former spouse or civil partner as an executor in your Will (ie the person who collects in all your assets, pays off your debts and distributes your estate) they will not be able to act as your executor once you are divorced or after you have ended your civil partnership. If you had appointed your ex as your sole Executor, without any provision for a replacement, this would have to be rectified upon your death, which could cause delays and unnecessary costs.

Making a new Will

Unless there is good reason to the contrary the best time to make a new will is after decree absolute and after all outstanding financial issues have been settled. That is so that any future claim of an ex spouse can be properly quantified

It is especially important to make a will to ensure that your children are properly provided for.

Divorce also affects guardian appointments in a will. If the couple getting divorced have children together, and not from previous marriages, then the remaining parent shall continue to have responsibility for those children as that parent also has parental responsibility for those children. If there were children from a previous partner, and the wife, for example, had appointed the now former spouse as guardian in her will, this appointment would fail. The former spouse was not the biological parent of the child and therefore does not have parental responsibility for the child. He (or she) cannot be automatically empowered to continue to parent the child; he has to be chosen by the mother in her will. When this couple divorce, this appointment fails. If no other person is appointed, it shall be for Social Services to assess who is the appropriate adult to parent the child.

Next steps

For further information about making a Will, please contact a member of our Private Client department for expert and professional advice.

Hayley Ford – Partner/Solicitor – Private Client Department.

Grounds For Divorce, “No Fault” A Step Closer?

/in /by

“The Times They Are A-Changin” *

Family law has not kept pace with societal developments but as a result of a recent case, this may be changing.

In order to get divorced in England and Wales, one needs to show that the marriage has broken down irretrievably. There are only five grounds to “prove” that this is the case. Three grounds involve periods of living apart. The shortest period is to have lived apart for two years on the basis that both parties to the marriage agree to the divorce. If one party does not agree then parties must live separately for at least five years. The two immediate grounds for divorce are adultery and unreasonable behaviour (fault based grounds). For many years family lawyers (especially those of us who are members of Resolution) have campaigned for a more compassionate “no fault” system in England and Wales. Where appropriate, many family lawyers have tried to assist clients in taking the ‘fault’ out of unreasonable behaviour petitions (as far as possible) by encouraging clients to draft mild divorce petitions and in many cases assisting the parties in agreeing the examples of unreasonable behaviour that will be used.

Family lawyers recognise and statistics bear this out that helping families separate with dignity and as little animosity as possible is better for the mental health of the divorcing couple and for any children of the family.

Mr and Mrs Owens

The decision of the Supreme Court in the case of Mr and Mrs Owens may put pressure on Parliament to look again at the current grounds for divorce and debate the introduction of a ‘no fault divorce system’ in England and Wales.

Mr and Mrs Owens were married for 37 years when they separated in 2015 and Mrs Owens started divorce proceedings on the basis of Mr Owens unreasonable behaviour. Mrs Owens filed a divorce petition on the basis of Mr Owens unreasonable behaviour and initially tried to keep her allegations limited and mild. Things changed when Mr Owens decided to defend the divorce petition. Mrs Owens was given leave to amend her divorce petition which eventually contained 27 allegations of Mr Owens’ unreasonable behaviour.

Mr Owens continued to defend the divorce. The case became one of the 1% of defended divorces in the UK. This meant that the parties had to attend court and provide evidence before a Judge about why Mrs Owens was alleging that the marriage had broken down. The initial Judge found that although the marriage had broken down (at this stage Mr and Mrs Owens were living in separate households) he felt that the 27 examples of unreasonable behaviour were “at best flimsy” and Mrs Owens had failed to prove “the allegations of unreasonable behaviour” against Mr Owens. Mrs Owens went to the Court of Appeal. The Court of Appeal dismissed Mrs Owen’s appeal and did not overturn the decision of the original judge. Mrs Owens then appealed to the Supreme Court. Baroness Hale of the Supreme Court said that “I have found this a very troubling case….” It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us.” The Supreme Court “reluctantly” dismissed Mrs Owens’ appeal. The result is that Mrs Owens is forced to remain married to Mr Owens until 2020, although they have been living apart since March 2015.

One hopes that once Brexit has been resolved, Parliament will debate a much needed reform of divorce law and establish an effective no fault system in England and Wales.

Shoshana Goldhill
Partner
* Bob Dylan 1964

Are You A Separated Parent And Thinking About Taking Your Children Abroad On Holiday?

/in , /by

As the summer months approach us, many begin dreaming of taking a break from reality and jetting off abroad with the children for a holiday. However, if you are a separated parent you need to consider carefully whether you are legally entitled to carry out your plans.

1. There is a Residence Order or ‘lives with’ Child Arrangements Order in place

If there is a Residence Order or Child Arrangements Order in place, ordering that your children ‘live with’ you (formerly known as a Residence Order) then you are able to take your children abroad on holiday for up to 28 days. The order must stipulate that the children are to ‘live with’ or ‘reside’ with you after the words “it is ordered”. If you do have an Order of this nature and are travelling abroad with the children, then it is still courteous to inform the other parent of your intentions. The only way you would be unable to travel abroad on holiday with the children when there is a ‘lives with’ Order in place, would be if there was also a Prohibited Steps Order in place preventing you from doing so.

2. There is a Contact Order or ‘spends time with’ Child Arrangements Order in place

If the Child Arrangements Order does not legally record that the children are to ‘live with’ you as explained above, or you are the parent that ‘spends time with’ the children (previously known as a Contact Order) then you must obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.

3. There is no Court Order in place in relation to the children

Whether you are the children’s primary carer or not, you would need to obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.

4. Who shares Parental Responsibility?

A child’s mother will always have Parental Responsibility (unless a public law order has been made stipulating otherwise). A child’s father will share parental responsibility if he was married to the mother, he is named on the child’s birth certificate (only applicable to births registered after 01.12.2003), he and the mother have entered into a Parental Responsibility Agreement, or the Court has made a Parental Responsibility Order in the father’s favour. Other third parties, such as step parents, guardians or same sex parents may also share Parental Responsibility, by virtue of a Parental Responsibility Agreement or Parental Responsibility Order. A third party could also acquire Parental Responsibility if they have a Residence Order or ‘lives with’ order in their favour.

5. What happens if I cannot obtain the necessary consent?

For the avoidance of doubt, it is always recommended that consent from the necessary third parties is obtained in writing before a holiday is taken. If consent is not given or refused, then it would be necessary for you to make an application to the Court for a Specific Issue Order before your intended holiday. The Court are able to make an Order permitting a foreign holiday in the absence of consent from the necessary third parties. If the other parent or person with Parental Responsibility wants to prevent a foreign trip for a specific reason, then they could apply to the Court for a Prohibited Steps Order. If you travel abroad with the children without the appropriate consent or Order of the Court, then you could potentially be prosecuted for child abduction.

If you are unsure whether you are acting appropriately, or wish to receive further advice or assistance in this regard, then please do not hesitate to contact our Family Department.

Kerri Westlake

Graduate Legal Executive

Divorce And Making Your Will

/in /by

What happens to your Will if you get divorced or end your civil partnership?

When you divorce or end your civil partnership your former spouse/civil partner is treated as having died before you.  This means that they will not inherit anything from your estate unless your Will specifically states that divorce or dissolution of a civil partnership would not affect the gift that was detailed in the Will.

In addition, if you had named your former spouse or civil partner as an executor in your Will (ie the person who collects in all your assets, pays off your debts and distributes your estate) they will not be able to act as your executor once you are divorced or after you have ended your civil partnership. If you had appointed your ex as your sole Executor, without any provision for a replacement, this would have to be rectified upon your death,  which could cause delays and  unnecessary costs.

Making a new Will

Unless there is good reason to the contrary the best time to make a new Will is after decree absolute and after all outstanding financial issues have been settled. That is so that any future claim of an ex spouse can be properly quantified.

It is especially important to make a Will to ensure that your children are adequately provided for.

Divorce also affects guardian appointments in a Will. If the couple getting divorced have children together, and not from previous marriages, then the remaining parent shall continue to have parental responsibility for those children.  Further guardianship for children of previous relationships need to be considered carefully.

Next steps

For further information about making a Will, please contact a member of our Private Client department for expert and professional advice.