How To Get a Divorce

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A Step by Step Guide on Getting a Divorce

We look at how to get a divorce and answer your frequently asked questions

Going through a divorce or separation can be one of the most stressful periods in your life and if you're unsure of what the divorce process is, or how it works in practice, then the whole thing can feel a little bit overwhelming.

The Divorce, Dissolution and Separation Act, was introduced on 6 April 2022, which has completely overhauled the law and now means that one party can start or a couple can jointly start, proceedings without the need to apportion blame or offer a reason for the divorce.

Divorce terminology is also changing too, bringing the process into the 21st century. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re embarking on a little easier.

What are the stages of getting a divorce?

Here we break down the process of getting a divorce into seven steps.. Steps one to four explain how to start divorce proceedings. The latter three steps explain the process of completing the divorce.

  1. Applying for a divorce

    One person or a couple jointly starts the divorce application. This can be done online or via a paper application.

    There is now no requirement to give a reason for divorce or blame your partner – it is now largely on the basis of irretrievable breakdown of the marriage.

  2. Reflection Period

    The court sends your partner a copy of the application and the new and important 20 week reflection period starts. The new law stipulates a minimum allowable period of 20 weeks between the initial application and the granting of the conditional order, the old decree nisi, and then another six weeks between this and the final order.

    While there was some concern that the new legislation would mean ‘quicker/easier’ divorces, this period will mean the shortest divorces will still take at last six months to complete, rather than 3-4 months under the previous law.

  3. Conditional Order Application

    You apply for a conditional order and decide whether you want to make a financial claim. Within the divorce application, there is a question asking if you want to make a financial claim, i.e. if you want to finalise your financial matters in court after your divorce. Although completing a financial disclosure form is not compulsory for every divorce, it is a useful tool to give both parties a clear understanding of each other’s financial position, as people don’t always know exactly what there is ‘money-wise’ to agree a fair financial split.

    Before you even start considering how you’re going to divide things up, it’s important that you are both open and honest with the information you provide about your finances.
    A financial disclosure is not part of the divorce application document, but it does tend to be done in parallel to completing the application. You can read more information about financial settlements on the family law section of our website.

  4. Application Review

    The court reviews your application. Once you’ve filled in your application, you’ll need to send it to the court, along with either your original marriage certificate or an official copy (which you can obtain from the local registrar for around £12). You can find the address of your nearest divorce centre on the gov.uk website. You can also apply for a divorce on-line rather than send in a paper application.

    As the applicant(s) you will also need to pay a fee to apply for a divorce (this is currently £550) – the application won't be issued without a payment being made. Payment can be made via debit or credit card, or by cheque.

    Although it is the responsibility of the applicant(s) to pay the fee, people often agree with their ex-partner to share the costs (if they are aware the application is being filed at this stage). If you are on a low income you may be able to get help with the fees, but you will need to make a separate application for this and produce details of your circumstances.

  5. Conditional Order

    The court grants the conditional order (and the six week cooling off starts). Once you’ve sent your divorce application to the court, your ex-partner will be sent a copy too. As the ‘responder’ they must acknowledge that they have received a copy of the divorce application by signing and returning an acknowledgement of service form to the court. They must do this within seven days of receiving the papers. The new Divorce, Dissolution and Separation Act has removed the option for an ex partner to contest a divorce.

    We recommend that you speak to your ex-partner in advance so they’re aware of the reasons you have filed the application and so they can keep an eye out for the papers. This can help prevent a delay with returning the form, which in turn can lead to severe delays with the divorce process and sometimes incur additional costs.

  6. Final Order Application

    You apply for the final order. The final step in obtaining a divorce takes place six weeks and a day after your final order is pronounced. If you’re the applicant then you will be the one to apply for the final order (the legal document that officially dissolves your marriage) after the ‘six weeks and a day’ period.

  7. Final Order Granted

    The court grants the final order. It’s important to know that you must file for your final order within a year after your conditional order is granted, otherwise you’ll have to go through more court proceedings, causing further delays.

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Can I get divorced if we have just drifted apart?

The introduction of the Divorce, Dissolution and Separation Act in April 2022 now means that no reason has to be given for starting divorce proceedings.  Proceedings can be started by one party or as a couple.  The divorce process generally takes between six and nine months but can take longer if financial matters still need to be agreed upon.

Do I have to talk to my ex-partner throughout the divorce process?

You don't have to, but it might help if you can. It’s always better if you can communicate with your ex-partner – especially if there are children involved. We appreciate that parenting through a divorce or separation is not easy. Even though you’ll no longer be married, you’ll both still want to act in the best interests of your children, so if you can retain some form of a relationship, it's better for everybody. It also helps to maintain some level of communication with your ex-partner when negotiating financial settlements.

However we appreciate that this isn’t always possible. If it's hard to talk to them, or your divorce is as a result of a domestic abuse case, then don't put yourself in an uncomfortable or compromising position. That’s where our divorce solicitors can work with you to try and reduce the stress and pressures surrounding the process, protect your interests, and seek a positive and prompt solution that works for you.

Can I get a divorce if my partner doesn’t want to?

Yes. Divorce proceedings, following the introduction of the Divorce, Dissolution and Separation Act, can be started by one party or by both parties.

Will my partner get 50% of our assets, even if they have cheated?

In England, the courts will always start with a 50/50 split of assets. But there are a number of instances where this may not be the case, such as the length of the marriage/civil partnership, large sums of inheritance or money generated after separation and sometimes generated pre-marriage and whether there are children. Fault – such as one partner cheating – has no bearing on the division of assets.

What am I entitled to in a divorce settlement?

This depends on a variety of factors i.e. the length and duration of the marriage, who the children will live with, what the matrimonial pot of assets consists of, what the respective income positions of the parties look like, and the age of the parties, to name but a few.

Once you have gone through the process of full and frank financial disclosure, a specialist divorce lawyer will be able to tell you what a Judge might consider being a fair financial settlement in your case. The starting point is for there to be an equal division of all matrimonial assets which includes assets in joint names but also any assets in the sole names of each party.

Visit our divorce financial settlements solicitors page to learn more about how we can support you.

Do I have to give my engagement ring back if we divorce?

This is a particularly common divorce question we encounter. If you break up with your partner, you may feel a moral obligation to return the ring - however, unless it can be proved that the ring was given conditionally, the law states that it is an absolute gift, meaning you do not have to return it to your ex.

But when it comes to household contents, also known as ‘chattels’ this is an area that is best dealt with directly between the parties as costs can quickly escalate when this issue is negotiated through solicitors. However, when high-value jewellery is involved, these items can cause conflict.

Wedding and engagement rings in particular can hold both monetary and emotional value, and the giver of those rings may believe that they are entitled to half the value, or even to have them returned.

In law, the giving of a ring is presumed to be a gift, and therefore it does not have to be returned. There may be an argument if an engagement is broken off, that the ring was given on the condition that it should be returned if the marriage did not take place. However, even though unfair, the recipient is not obliged to return it.

However, if the ring is of very significant value, this figure may be taken into account as part of the overall settlement.

Does social media cause divorce?

A recent study found that social media can be a factor in one in seven divorces. When going through a divorce, it can be easy to be tempted to post about how we’re feeling on social media so we've put together a complete guide on what to do and what not to do on social media when going through a divorce. View our guide here >>

Do I need to appoint a solicitor?

While it is possible to get a divorce without the support of a solicitor, you may run the risk of missing important legal loopholes, such as the ‘remarriage trap’. Put simply; if you remarry without a claim for a financial order you may be barred from seeking maintenance and other financial claims. You may also find yourself out of pocket down the line. Without full legal severance, it is possible that an ex-partner could chase you for a share of funds you may accrue later in life – whether that be a pension pot, inheritance or even a lottery win!

We’re not married, but we’ve been together for years – will I get 50%?

There is no such thing as a ‘common law wife/partner'. Cohabiting couples frequently believe that living with somebody for a prolonged period of time leads to certain legal rights such as a share of property owned by one party – it does not. If you choose not to marry then do consider a living together agreement to protect your best interests.

What happens during a divorce if the couple has a prenuptial agreement?

The court will consider whether to give effect to a prenuptial agreement if it is freely entered into by each party with a full appreciation of its implications. 

The key question is fairness. To establish this, the court will query whether the agreement was entered into freely and if the parties were aware of the implications of the agreement. It must be fair to hold the parties to the agreement in the circumstances prevailing, this will include whether any children have been born.

Our five top tips for going through a divorce

11

 

1. Remain civil and amicable

Keep discussions regarding the divorce and financial matters away from children. Emotions will understandably be running high but it’s essential that children do not pick up on any parental discord. Remaining civil and amicable with an ex-partner in the presence of the children can make the divorce process less traumatic for everyone involved.

2. Take care during any conversations

Assume any text message, conversation or email exchange with an ex-partner will be shown to a Judge. Stop and think before sending an angry message in the heat of the moment, as this could be regretted later down the line.

3. Consult a lawyer before any major decisions

Avoid making any drastic decisions such as leaving the family home or clearing out a bank account without consulting a divorce lawyer, as this could adversely affect the case.

4. Keep a diary of events

Divorces are an emotional and unstable time, meaning it can be hard to keep track of important events which may need to be relied upon later down the line. Keeping a diary and documenting everything is one way to ensure all essential information is on hand. For example, if an ex-partner misses a contact session or they tell you they will be opening a new bank account in their sole name, make a note.

5. Outline specific objectives

Defining goals can help keep the divorce process on track.

If retaining a pension is the main priority, then informing a divorce lawyer during the initial appointment would be a wise move. If the aim is to remain in the former family home, thinking about whether that goal is realistic and achievable is essential.

Neither party will ever come away from a divorce with absolutely everything that they wanted, so it’s important from the outset to decide what’s most important and what can be lived without.

How we guide you through the divorce process

The complicated part of the divorce process is not the dissolving of the marriage, but dealing with issues surrounding it such as those involving children or finances.

Our team of family lawyers can help support you and advise on the options available to complete your divorce process, whether this is making child arrangements and ensuring that the disruption and emotional stress is kept to a minimum, or securing the best financial settlement for you to secure your future.

The process of divorce can be emotional and the actions you take in the early stages can set the tone for everything that follows. If you’re about to start divorce proceedings either jointly or separately, or currently going through the separation process, then speak to one of our divorce lawyers. We’re here to guide you through the maze of emotions and legal responsibilities, every step of the way.

Helpful Resources:

  1. What happens after you apply
  2. Citizen's Advice on getting a divorce
  3. Check if you're eligible for Legal Aid
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Helen works with clients to ensure that they are sensitively guided through the complex area of family and relationship breakdown.

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Divorce & Separation

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Business interruption insurance | our fixed fee support

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Home Business Interruption Insurance | Our fixed fee support

COVID-19 continues to be a disruptive force across all sectors, with many companies unable to continue with business as usual.

When COVID-19 first impacted, companies turned to their business interruption insurance to claim back the money they had lost and they continue to do so. Companies were then faced with arguments from insurers refusing to provide cover.

Business interruption insurance - do insurers have to pay out for COVID-19-related losses?

To get clarity on whether insurers have to pay out to companies under business interruption policies for COVID-19-related losses, the Financial Conduct Authority (FCA) brought a test case.

The outcome of the FCA test case in the High Court provided a degree of clarity to both businesses and insurers, especially in terms of interpretation.  However, the arguments continued as both the FCA and six of the insurers had been allowed to appeal aspects of the original High Court judgment,  the decision on the appeal (which was heard by the Supreme Court)  was made on 15 January 2021 and has found in favour of policy holders. The decision to dismiss the insurers’ appeals was unanimous.

The decision is good news for policyholders. It is more likely now that insurers will be required to pay out on policies identical to and similar to those tested by the FCA’s case.

The art of interpretation

The aim of the original FCA High Court test case was to provide businesses and insurers with a degree of certainty on how the wording of policies should be interpreted. The Supreme Court’s decision provided more certainty. In some aspects, the Supreme Court went much further than the High Court which strengthens the argument for policyholders.

Potentially worth billions of pounds, the case involved the examination of 17 policy wordings from eight insurers to assess whether COVID-19 generates a pay-out. The Supreme Court’s decision had claims rejected to re-visit their policies and for others who did not claim at the time to have a look at their policies with a view to making a claim.  This decision will also have an impact beyond business interruption insurance and into other areas of insurance. This is because one element of the case was about causation; namely what was the cause of the business interruption?

Challenges to overcome

There are a number of issues that come into play regarding business interruption claims, including:

• The intended nature of business interruption policies - many business interruption insurance policies only have basic cover for business interruption resulting from property damage (so actual physical damage to the property). Other business interruption policies (often bought as an add on to a property damage policy) cover business interruption for other causes – for example relating to infectious or notifiable diseases or denial of access or where public authorities enforce closures or impose restrictions. This denial of access (and what caused it) often conflicts with the policyholder’s view, who may feel that they should receive a pay-out regardless of what triggered the business interruption.

• Geographical coverage – Some insurance policies include geographical coverage clauses, which cover businesses if there is a “notifiable disease” on the premises in the surrounding area. With COVID-19, it may be difficult to prove that it was present in a certain location (the outcome of the test case has helped here for certain policy wordings). Subject to the wording of the policy, the Supreme Court decision will now assist.

• Demonstrating a causal link – COVID-19 will have to be directly linked to the losses incurred for businesses to be covered. This could have been a challenge, as the losses may be due to the Government-mandated closures, rather than the virus itself but the Supreme Court’s decision has provided the clarity needed here too.

Making a claim on your business interruption insurance policy

The three national lockdowns imposed as a consequence of the COVID-19 pandemic inevitably mean businesses which cannot or could not operate (or whose operations are restricted) should consider whether their losses are recoverable under any business interruption insurance policy they hold. It is the case though that after the first national lockdown some insurers re-wrote their policies to tighten up on the extent of any indemnity cover and to put themselves in a stronger position to refuse cover when entering into new policies.

As a result of the Supreme Court decision, insurers with policy wording identical to or similar to those tested should now  settle all valid claims as soon as possible and it is understood that, in many cases, the process of settling claims has already begun.  However, regardless of the outcome, it is important to remember that claims will turn on their particular facts and, most importantly, the wording of the policy.

How we can help with our fixed fee support

It may be that you are thinking of making a claim under a business interruption insurance policy or that you have already made that claim and it has been rejected.

Making a successful claim

It’s vital that if you are thinking of making a claim to your insurer that you have an understanding of whether the policy wording will cover you and a plan to challenge any arguments that an insurer may advance to try to invalidate any claim.

If you do have grounds for a business interruption claim, you must gather the right supporting evidence, including collating original documents that show the lost revenues, as well as the forecasted revenues and any expenses incurred. Instead of treating this as a one-off process, you should keep an ongoing record of the relevant information, just in case you decide to make a claim at a later date.

How we can support you

We will carry out a review of your policy wording and provide you with an opinion on validity (whether we think the policy wording covers you or not). We will also identify potential obstacles to any successful claim resulting from our review of the policy wording. We shall do so applying the decision of the court (following the outcome of the Appeal).

Already made a claim and rejected?

A rejected claim doesn’t mean you have to give up. We will carry out a review of your policy wording, consider the reasoning from the insurer for the rejection of the claim and provide you with an opinion on validity. We will assess this against the findings in the Supreme Court decision, if relevant.

If we consider the insurer has got it wrong, we will summarise your options available, such as:

  • Complaining directly to the insurer if you believe the wrong decision was made.
  • Making a compensation claim against the insurance company for breach of contract.
  • Making a complaint to the Financial Ombudsman Service to seek compensation.
  • Assessing whether you are entitled to compensation from the broker if you believe the advice given wasn’t correct.
Costs

If you have yet to make a claim our fixed fee review is
£450 + VAT per policy

If you have made a claim which has been rejected or had cover refused, our fixed fee review is
£550 + VAT per policy

What are my next steps?

Often, the time and financial costs involved in litigating against a large insurance firm puts businesses off taking a stand. However, with the right legal advice, organisations can find viable funding options that allow them to take the next step towards a fair result.

By following the conclusions of the Supreme Court decision and any guidance created from the case, businesses can increase their chances of making a successful business interruption claim, lessening the long-term financial impact of the pandemic.

Contact us

Whether you’re considering making a claim on your business interruption insurance, or have had a claim rejected, our commercial disputes team can advise you on your options and guide you through the process of what to do next.

Do contact us either leaving your contact details here on our short form or by calling either Tim Speed or Steven Skiba. We look forward to hearing from you.

Our guide to recovery and resilience helps to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

Contact us today to find out more about our fixed fee support
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If you still have questions or any concerns please get in contact with us or call us on 0330 024 0333

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The importance of the Pre Nup

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Can a pre-nup be overturned?

For lots of couples the use of a prenuptial agreement (commonly referred to as a pre-nup) is there to protect assets and interests, should things go wrong in the marriage.

In the past, they have very much been thought of as the domain of the rich and famous but with blended families becoming more common, they too are becoming much more common.

The recent news that billionaire musician and producer Dr Dre and his wife Nicole Young are divorcing, has bought the issues of pre-ups into sharp focus and the thornier issue of ‘Can a pre-nup be overturned?’

The background to the case

Dr Dre and his wife, Nicola Young, entered into a prenup prior to their marriage in 1996.   The validity of the prenup is now in focus as paperwork seems to show that Dr Dre repeatedly ripped up copies of the pre-nup throughout their marriage, leading his wife to believe that the pre-nup was no longer valid.   Young is also citing that she felt threatened and intimidated into signing the agreement shortly before their marriage.

Dr Dre is reportedly worth near to 1 billion dollars so the financial fall out from the argument of pre-nup v no pre-nup is extremely significant.  Dr Dre has since confirmed the existence of the pre-nup agreement requesting that any settlement is made in accordance with it.

What is the Pre Nup situation here in the UK?

The UK has been slow to recognise the importance and validity of pre-nups and it was the landmark case of Radmacher v Granatino that highlighted this.

Radmacher and Granatino had entered into a pre-nup prior to their marriage agreeing that neither party would benefit from the property of the other, on divorce.

When the couple did divorce, the pre-nup was overturned by the judge, who awarded the husband a much larger settlement than was recorded in the pre-nup because, in her view, its importance had been lessened as the husband had not received appropriate legal advice before signing it and there were now children to take into account.

The wife appealed this decision and won.  The husband took the case to the Supreme Court but the decision was upheld and he was unsuccessful.  The judge ruled that pre-nups have ‘magnetic importance’ and appropriate weight should be given to the agreement IF entered freely entered into by both parties and who fully appreciate the implications of the agreement and potential outcomes.

Can a pre-nup be overturned in the UK, even in light of the matter of Radmacher v Granatino?

The keyword in the above case review is IF the agreement has been entered into freely and knowledgeably.  If it can be proved that this is not the case, then there are grounds for the agreement to be overturned and it will not be considered binding if:

  • Any subsequent children from the marriage are not provided for.
  • The agreement was signed under pressure or there was undue influence or if one party did not have the  legal capacity to enter into the pre-nup
  • It can be proven that one party did not fully understand what they were signing or what the implications to them would be if it was used.

What else can I do to ensure a pre-nup is given maximum weight?

To limit the opportunities for the agreement to be reviewed or overturned it is advised that any prenuptial agreement be drawn up and entered into well in advance of the actual wedding to allow time for review, discussion and negotiation if appropriate.

Financial disclosure is also a prerequisite. Either party found to be failing to disclose their financial situation will mean the agreement is unlikely to be given maximum weight.

Also evidence of the parties having a full understanding of the financial position of the other party will help an agreement remain watertight.

If all of the above can be proven then a pre-up, whilst still not technically legally binding, will stand up to scrutiny by a UK court and should be given decisive weight.

Who should get a pre- or postnuptial agreement?

If you are engaged to be married or about to enter into a Civil Partnership and wish to have certainty regarding your financial matters in the event of your marriage/relationship breaking down, then you should get a pre-nuptial agreement.

If you have already got married/entered a Civil Partnership and you would like to make arrangements to create certainty regarding your financial situation in the unfortunate event your marriage/relationship breaks down, you should get a post-nuptial agreement.

If you have children from a previous marriage that you wish to financially safeguard then, again, you should look to obtain a nuptial agreement.

Finally, if you have significantly more wealth than your partner then, again, you may wish to enter into a nuptial agreement.

It's always sensible to have a safety net in place which sets out clearly what should happen to your finances, in the event your relationship breaks down.

What happens during a divorce if the couple has a prenuptial agreement?

The court will consider whether to give effect to a prenuptial agreement if it is freely entered into by each party with a full appreciation of its implications. 

The key question is fairness. To establish this, the court will query whether the agreement was entered into freely and if the parties were aware of the implications of the agreement. It must be fair to hold the parties to the agreement in the circumstances prevailing, this will include whether any children have been born.

What should someone do if they’re asked to sign a prenuptial agreement?

Always take legal advice. Find out more about our services and how we can help by visiting our pre & post-nup page.

It is key that each party seeks separate legal advice.

How we can help you with a pre-nup

Pre-nups are becoming much more common so to ensure that they work for you and your family careful and considered advice is key.

For further information, please contact Stephanie Kyriacou, another member of the family team in your local office or fill out our enquiry form, and a member of our family law team will get in touch with you shortly. 

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Stephanie deals with all aspects of relationship breakdown to include divorce, children matters and resolving the financial issues upon separation.

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