Divorce Law

Prior to 6th April 2022, the individual who initiated the divorce proceedings, also known as the Petitioner, would have needed to prove that the marriage had broken down by using one of the 5 reasons:
• Their spouse has committed adultery with a member of the opposite sex.
• Their spouse has committed unreasonable behaviour, this includes not providing financially to the household, spending too much time outside of the home at work or more serious allegations such as violence and domestic abuse.
• Their spouse has deserted them, this can only be stated if it has been two years since the spouse left.
• The couple have been separated for two years and both parties still agree to the divorce.
• The couple have been separated for five years – this does not require the spouse to agree to divorce.

However, following the introduction of ‘No-fault divorce’ there is no longer need for either party to assign blame on the other for the breakdown of their marriage.

The aim is that ‘no-fault divorce’ will allow couples to separate without conflict, enabling them to focus on important issues, such as child arrangements and financial matters.

The new two-part ‘divorce order’ consists of a ‘conditional order’ which replaces the decree nisi and a ‘final order’ in place of the decree absolute. The ‘petitioner’ will now be known as the ‘applicant’.

A divorce order can only be pursued on the grounds that the marriage has irretrievably broken down. The only exceptions under which that can be contested are when:
• the validity of the existence of the marriage is questioned
• the Court does not have jurisdiction to deal with the matter
• the respondent has filed an application for a matrimonial/civil partnership order and the party’s application has not been dealt with and no order has been made

To avoid multiple applications for the same remedy in matrimonial/civil partnership cases, a respondent must wait for the first application to be dismissed or decided. Alternatively, permission from the Court is required for a new application. These restrictions aim to prevent cross-applications.

Replacing the previous requirement to provide supporting evidence, the application for a divorce order must be accompanied by a statement prepared by the applicant to confirm the contents of the application are accurate.

The new procedure allows both parties to make a joint application where they will be required to prepare a statement which will not be contested. They will then both receive a notice of proceedings which should be acknowledged within 14 days of receipt.

There is a minimum 20-week cooling-off period from the start of the proceedings, including the applicant’s application being issued by the Court to obtain a conditional order (previously decree nisi).

It is mandatory for all applications to be completed by or on behalf of the applicant via the online portal, MyHMCTS. The exception is civil partnership dissolution cases, judicial separation or nullity which should be filed at a Regional Divorce Centre. The Acknowledgment of Service can be filed online via the portal by the respondent. The portal will then send the parties notifications of any updates to their application.

In England and Wales, legal aid isn’t available for the costs of divorce unless it involves domestic abuse, financial abuse, child abduction or if you’re at risk of homelessness. You may be entitled to legal aid for mediation, however. To find out more about how Buckles can help with Family Mediation please visit our dedicated webpage. x . 

In Scotland and Northern Ireland there are two types of legal aid available for divorce cases: 

• Advice and assistance – help with the cost of legal advice from a divorce solicitor and the completion of legal paperwork. 
• Civil legal aid – if you need to go to Court, legal aid can be used to help with the cost of using a divorce lawyer to prepare your case and speak for you in Court.  

Petitioners should apply for advice and assistance first before applying for civil legal aid if they require it. If you’re applying for legal aid in Scotland or Northern Ireland, you will need to prove you can afford to pay for your legal costs yourself.  

You should each provide full and frank disclosure outlining your finances.  

As with all aspects of a divorce, we encourage making amicable arrangements to deal with finances to be formalised in a legal document called a consent order. If the judge is satisfied that the financial agreement is fair, he will make the order. 

If amicable arrangements cannot be made, financial remedy proceedings are issued at the Court and a judge will assist with reaching a financial settlement or, if matters go to a final hearing, make the decision for you. 

What will a judge take into account? 

• Your income, earning capacity, property and any other financial resources you both have 
• Your financial needs, commitments and responsibilities now and in the future 
• The standard of living you enjoyed before the breakdown of the marriage 
• Your ages and duration of the marriage 
• Any physical or mental disability of each spouse 
• Any financial contributions which each spouse has made or is likely to make 
• The value of any benefits, such as pensions, which one spouse may lose as a result of the divorce 
• In very exceptional circumstances, conduct 

For more information on dealing with financial arrangements in a divorce, please read our blog on the issue. 

When going through a divorce, it is crucial to consider all shared assets, including property, bank savings, and pensions. Since December 2000, pensions have become a mandatory part of divorce settlements, as they contribute to the overall value of marital assets. 

As such, unless you and your former spouse signed a pre-nuptial agreement stipulating how a pension would be treated upon divorce, there is usually no way to protect it entirely should that marriage ultimately fail.  

It’s not uncommon for people to prioritise the fate of the family home and overlook the significance of pensions. However, pensions hold substantial worth and play a vital role in future planning. Therefore, determining the appropriate course of action for the division of pensions when divorcing is of utmost importance. 

There are three main options available for dividing pensions in a divorce: 

• Sharing: This involves reaching a formal agreement to divide pension assets at the time of divorce. The exact percentage is determined by the courts, and the receiving party may choose to become a member of the pension scheme or transfer the value to a new provider. 
• Offsetting: In this approach, the value of the pension is offset against other assets. For instance, one spouse retains their entire pension while the other receives alternative assets (such as property or cash) of equivalent value. 
• Attachment: This option involves assigning all or a portion of the pension to be paid to one party when the other begins to receive pension benefits. Ownership of the pension is not legally transferred. 

We recommend that you take independent financial advice in order to fully understand the process and get value for money. 

This is a complex part of the divorce process and we are happy to spend time explaining the options available to you. 

Divorce does not invalidate a Will. The current Will remains valid, however in cases of inheritance, your ex-partner would be treated as if they had died if you divorce or dissolve a civil partnership. As such, they will be unable to receive any benefits as a beneficiary, or serve as an executor or trustee.  

Of course, divorce is not always acrimonious, and often individuals will still want to provide for their ex-partner, but a Will would need to be effectively updated to reflect this. 

If your Will does not state what should happen in the case of the ex-partners death, there could be problems with how your estate is divided in the future.  

It’s important to update your Will as soon as possible to avoid any problems, we have a large team of Will Solicitors at Buckles who are happy to help you alter your Will to suit the needs of your family.  

A prenuptial agreement is a legal document that is created before marriage, setting out how assets are to be divided if a couple split up.  A post nuptial agreement (or postnup) is a similar legal document, but this is made after the couple is legally married. 

Neither prenups or postnups are legally binding documents, and Courts can veto any agreement during divorce proceedings if they feel for example part of it is unfair or is discriminatory to any children. They can also be contested if the  a judge feels that either partner was forced into the agreement or if the spouse was suffering poor mental health at the time. However, pre-nups or post nups may be given significant weight by family courts. 

As a multi-service law firm, we can offer advice about both prenups and postnups to our clients and provide practical advice on ensuring that their documents are up to scratch and will stand up if a divorce is to take place. 

Every divorce case is different, but many do not require a Court attendance. As long as both parties agree to the divorce and there are no disputes with the agreements you have made, you will not need to attend Court. Your divorce paperwork and documents will still have to be filed with the Court and considered by a judge, however. You can submit divorce paperwork online via the government website.  

If you and your ex-partner are unable to agree on matters, then you may be required to go to Court.  

A conditional order, or a decree nisi as it was formally known, is a document that states the Court sees no reason as to why you and your spouse cannot divorce. This is applied for after a couple has applied for their divorce.

There is a 20-week cooling off period after applying for the divorce before you can be granted a conditional order. After this there is a 6-week waiting period after receiving your conditional order before you may apply for the final order which marks the divorce as complete.

A divorce will take at least 6 months to complete if your circumstances are straightforward and both parties agree to the terms. It may take longer to complete if there are disputes around money, property or children.  

When you apply for a divorce, there is a minimum Court fee of £593 to submit the documentation required, and this is applicable to all divorces in England and Wales. There may be additional fees for things like a consent order or a financial order.  

It costs a minimum of £284 to lodge a petition in Court in Northern Ireland. Plus, there are additional costs for the court hearing and the decree absolute or conditional order to be granted or finalised.

In Scotland, you will pay a minimum of £187 to confirm your divorce and pay for court proceedings. There is more information on divorce court fees for all areas of the UK at MoneyHelper. 

You may be able to apply for help with these costs depending on your personal circumstances. (there is more about this on the government website). There are also additional costs when using a divorce solicitor to help with associated paperwork or representation in Court, and there may be additional costs not mentioned here.