DIVORCE
HOW TO OBTAIN A DIVORCE
You can get a divorce if you have been married for at least a year and your relationship has permanently broken down. Your marriage must be legally recognised in the UK and you must have a permanent home in England or Wales.
There are 3 steps to getting divorced
• filing a divorce petition showing the reasons why your marriage should end.
• applying for a decree nisi. If your spouse agrees to the petition, you receive a document stating that there is no reason why the divorce cannot go ahead.
• applying for the decree absolute which legally ends the marriage. You must wait 6 weeks after you have got the decree nisi before you can apply for the decree absolute. This gives some time for finances and other issues to be discussed before the marriage ends. You should apply for the decree absolute within 12 months of the decree nisi otherwise you will have to explain the delay to the court.
DIVORCE WTHOUT SOLICITORS
A divorce can be arranged without the need for solicitors where both parties agree on the reasons for the divorce, how any children will be cared for and how the assets of the marriage will be split. In this case no court hearing will be necessary and the paperwork should be fairly straight forward.
GROUNDS FOR DIVORCE
There are 5 grounds for divorce
• adultery – your spouse has had sex with someone else of the opposite sex, and you can no longer bear to live with them. Adultery isn’t a legitimate reason if you have lived with your spouse for 6 months after you found out about the adultery
• unreasonable behaviour – your spouse has behaved so badly that you can no longer bear to live with them. This may involve physical violence, verbal abuse, drunkenness or drug-taking, or a refusal to pay for housekeeping
• desertion – your spouse has left you without your agreement, without a good reason, to end the relationship, or has been gone for more than 2 years out of the past 2 and a half years
• you have lived apart for more than 2 years – both spouses must agree in writing to the divorce
• you have lived apart for more than 5 years – even if your spouse disagrees with the divorce you can usually obtain a divorce under this ground.
APPLYING FOR A DIVORCE
To apply for a divorce you need to fill in a divorce petition form which includes your details and you must include your marriage certificate. If your spouse has been unfaithful you do not need to name the person they have been unfaithful with.
If you have children you have to complete a ‘statement of arrangements for children’ form.
A court fee is payable but if you are on benefits or on a low income you may get help with this.
Your spouse can respond to your application either by agreeing to the petition, in which case the divorce can go ahead and you can apply for a decree nisi. If your spouse disagrees with your divorce petition they will either defend it or they may start their own divorce petition in which case the court usually holds a hearing to discuss the case.
If your spouse does not respond to the petition you will need to prove they have received the petition for the divorce to proceed.
ARRANGEMENTS FOR CHILDREN
When you divorce you should make arrangements for your children in terms of where they will live, when they will spend time with each parent and who will pay child maintenance etc. A family mediation service can help work out the arrangements. If the couple cannot reach an agreement the court can do so using a court order. The court may use the Children and Family court Advisory and Support Service (Cafcass) to provide a report to determine what is in the best interests of the children. When making a decision the court judges and magistrates will always put the welfare of the children first and they may consult the children about their feelings.
CARVERS – Carvers is a specialist high street practice with extensive experience in divorce and family law.
CHILD MAINTENANCE
Child Maintenance is financial support that helps towards a child’s living costs when parents have separated. It is paid for children under 16 or under 20 and in full-time education, but not higher than A-Level or equivalent. The parent who doesn’t have day-to-day care of the child pays child maintenance to the person who does. That person may be a grandparent or guardian. Maintenance can be a private arrangement or it can be done through the Child Support Agency (CSA), now the Child Maintenance Service (CMS). They can
• work out the level of maintenance and they can also collect the payments on your behalf.
• locate the other parent if you don’t know where they live
• resolve issues regarding parentage. This could involve both parents having DNA tests.
• reassess payments when changes in parents’ circumstances have been reported
• take action if payments are not made. The service has the power to order the non paying parent’s employer to pay the maintenance from their wages directly to the service. It can take money directly from benefits or from the parent’s bank or building society account. It can also take court action which could result in the defaulting parent receiving a visit from the bailiffs, having property forcibly sold, or even being sent to prison. The defaulting parent may be responsible for the service’s legal costs.
The service cannot generally be used if the child or the parent who will be paying maintenance, lives abroad.
PAYING PARENT LIVING ABROAD
The exceptions to this are when the parent living abroad
• is a civil servant
• working in Her Majesty’s Diplomatic Service
• a member of the Armed Forces
• working for a company that is based and registered in the UK
• working on secondment for a ‘prescribed body’, such as a regional health authority or local authority.
If the paying parent lives in Australia the Australian CSA may be able to help.
If the paying parent lives in the EU and has valuable assets in the EU eg. property, cars or money, that EU country must enforce court orders for child maintenance and decisions made by the CSA.
Outside of Australia or the EU, you can ask foreign authorities to enforce a child maintenance order or ask them to create a court order for you.
RECIPROCAL ENFORCEMENT OF MAINTENANCE ORDERS (REMOs)
The UK has over 100 agreements with other countries regarding recognising and enforcing child maintenance orders. An agreement means that child maintenance orders made by UK courts can be registered and enforced in other countries. If you contact the court which made the order, it will send it to the REMO unit which will deal with the foreign court on your behalf.
COMPLAINTS
If you are unhappy with the way your case has been treated and you wish to complain you must do so to the office managing your case within 15 working days. If you are not satisfied you can ask the Independent Case Examiner (ICE) to review your case. Your final option for is via your MP to the Parliamentary and Health Service Ombudsman.
APPEALS
To make an appeal against a child maintenance decision contact your Child Support Agency (CSA) service manager stating why you think the decision is incorrect. If the CSA decides not to review the decision or you are dissatisfied with the outcome of a review, you can appeal to an independent tribunal. This must be within 1 month of the decision. Late appeals are only accepted if there is a good reason eg. serious illness on your part or death or serious illness of the close relative.
CARVERS – Carvers is a specialist high street practice with extensive experience in childcare law.
DOMESTIC VIOLENCE
FAMILY LAW ACT 1996
This Act was intended to revolutionise the whole divorce process. However much of the legislation has been put on hold.
However Part IV of the Act covering Domestic Violence was implemented in 1997. This was intended to rationalise the previous mishmash of legislation covering domestic violence. It provides a single set of remedies available in all Family courts. It extended eligibility to a wider range of people in family or similar relationships. These remedies have subsequently been extended under the Domestic Violence Crime and Victims Act 2004 which defined the criminal offence of domestic violence as ‘incidents of threatening behaviour, violence or abuse between people who have or had a relationship with one another’.
There are two main types of injunctions which can be applied for under the Act
• Non-molestation orders, for protection from all forms of violence and abuse;
• Occupation orders – often called exclusion orders which regulate the occupation of the shared/family home or the surrounding area
To apply for an injunction you must fit one of the following criteria
• are married, have been married or have formally agreed to be married to each other
• have been in a civil partnership
• live or have lived in the same house
• are related
• have a child together
In addition the 2004 Act made common assault an arrestable offence. Subsequent changes to the Police and Criminal Evidence (Northern Ireland) Order 1989 have extended this power of arrest to all offences, not just common arrest. This means a constable with reasonable grounds for suspecting that an offence has been committed may make an arrest without a warrant.
CARVERS – Carvers is a specialist high street practice with extensive experience in divorce and family law.
OTHER FAMILY LAW LEGISLATION
WELFARE REFORM AND PENSIONS ACT 1999
This Act introduced from 1st December 2000, gives the option of pension sharing on divorce, allowing pension rights to be treated like other assets transferable from one spouse to another on settlement. Effectively pension rights can be transferred from an existing scheme to another new scheme for the benefit of the other spouse.
FAMILY PROCEDURE RULES 2010 PRACTICE DIRECTIONS
These rules established a comprehensive modernised code of family procedure replacing a large body of unconsolidated rules, guidance and forms for different courts and different types of proceedings