If you separate from your partner there are a number of things to be considered and decided. For example:

• where you are going to live from now on, and where your partner will live
• if you have children where will they live and what arrangements will there be for them to see the other parent
• what to do about money and possessions you have obtained together – this includes savings and debts

There is no simple ‘one-size-fits-all answer’ because everyone’s situation is different. However, if you need separation advice our expert family mediators can help you settle on all issues relating to money, property and parenting. You can book an appointment here.

A divorce petition is sent to the court, or completed online via gov.uk with a form setting out the arrangements for the children, where appropriate. Sometimes this form is agreed between you before proceedings are issued. The arrangements are not binding on you and, if there is any dispute between you, not resolved in mediation, it is open to either of you to make an application under section 8 of the Children Act 1989 for orders for residence, contact, prohibited steps or specific issue orders.

Once the divorce petition, the statement of arrangements for the children, the original marriage certificate, the fee and the correct number of copies have been sent, the petitioner receives a note of the court number and the documents are served on the respondent by post. The respondent receives an acknowledgement of service form which they need to complete and return.

The court will forward a copy of the acknowledgement of service form to the petitioner once it is received, and the petitioner will then complete a standard form affidavit in support of the
petition.

This, once sworn, is lodged together with a form requesting directions for trial. The papers at this stage are placed before a District Judge who will certify whether or not the decree
can be granted.

If it can, then the court will list a date for the pronouncement of the decree nisi and inform you of the date. It is not necessary for any attendance on the date of the decree nisi, and a few days after a copy of the decree will be sent to you. Six weeks and one day after the decree nisi the petitioner can apply for the decree to be made absolute. This is done by way of form with the appropriate court fee. It is an administrative act and is usually sent back by the court within days of the application.

For an undefended divorce the time from the issue of the petition until the Decree Absolute (the final decree) is usually between four and a half to six months. It depends to a large extent on the court issuing the proceedings. It is likely to take longer than this if the financial aspects need to be resolved by the court.

There is no such thing as ‘automatic’ divorce. Sometimes people confuse the rules around divorce applications and assume that if a couple has been living separately for two or five years, then they are considered to be legally divorced. This is not the case.

The confusion arises because of rules that state that one of the five grounds for divorce is that you can apply for a divorce if you’ve been separated for at least two years and you both agree to it.

Another of the five grounds for divorce is that you’ve been separated for at least five years and, in these circumstances, you can apply for a divorce even if your husband or wife disagrees.

A petition can be presented to the Principal Registry of the Family Division or to any divorce county court. You must have been married for more than 12 months. You can also use the gov.uk online divorce process.

There is only one ground for the dissolution of the marriage i.e. that the marriage has broken down irretrievably and to show that you must prove one of five facts. If satisfied on the facts the
court will grant in the first instance a Decree Nisi which cannot be made absolute for six weeks and one day. The five facts are:

a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent

b) unreasonable behaviour on the part of the respondent

c) desertion (for a period of over two years)

d) that the parties have lived apart for a period in excess of two years and the respondent consents to the divorce, and

e) the parties have lived apart in excess of five years.

The two immediate grounds a) and b) are the most common. With an adultery petition it is no longer necessary to name the co-respondent and it is, in fact, encouraged that you do not. With
an unreasonable behaviour petition, the particulars will usually run to three or four paragraphs and should set out the first incident, the worst and the last. At the end of the petition is a prayer for the relief sought. This usually includes the petitioner’s claims for financial relief and, it is necessary for all the claims to be included in here even though it is unlikely that they will be pursued.

The person who issues the proceedings (the petitioner) will have control of the process. The other person (the respondent) has a limited role to play. It does not usually matter who issues
the proceedings and it may be possible for you to agree between yourselves how you will share the court costs.

There are other options. You may come across a decree of judicial separation. This can be obtained on the proof of the same five facts as divorce but the decree of judicial separation
does not end the marriage – it just states that you can live separate and apart from each other.

It is sometimes used for religious reasons or where someone does not want a divorce yet they want access to the financial relief claims available.

The marriage could also be annulled. Nullity petitions bring an end to the marriage and the marriage can be treated as void or voidable. Financial relief is also open to the parties to nullity
petitions.

If you do not intend to issue proceedings at this stage then it is possible to incorporate your proposals into a Deed of Separation. As long as there has been full disclosure and you have
received legal advice it is likely that any agreement you record will be upheld by the court at the time when the divorce goes through. If you are not married then your proposals can also be
incorporated into a Deed of Separation.

This is amongst the questions that are most frequently asked when a couple begins divorce planning. It very much depends on your circumstances, and so is not simple to answer.

All sorts of factors will influence the decision about who gets the house, including decisions you make about where the children will live, whether there is a mortgage involved, each person’s financial situation, and so on. Very often it is difficult for a divorcing couple to agree these things.

Whatever the issue, NFM’s family dispute resolution experts can help you settle. So if you need divorce planning help, get in touch. You can book an appointment here.

If you are seeking to dissolve a civil partnership, the process is similar to divorce but there are a few differences. The proceedings are started by an application not a petition. There is the
conditional and final order as opposed to the decree nisi and decree absolute. The grounds are the same – the irretrievable breakdown of the partnership – but only four facts can be relied upon (not adultery).

Financial matters tie in with the divorce. If you want your proposals to be incorporated in a consent order for the court the divorce must have reached the decree nisi stage. The court only
has jurisdiction to make financial orders on or after decree nisi and they are usually brought into effect on decree absolute. With a pension sharing order it is necessary for there to be a decree
absolute.

There are no set rules when it comes to decisions about homes and ownership.

You can make whatever arrangement you like with your partner, but it’s wise to bear in mind the legal position and what a court might decide. And the situation varies depending on whether you are married, in a civil partnership or cohabiting

There are very few circumstances where your partner can make you leave your home and both partners have the right to remain in the family home, but courts will give priority to making sure children have a secure home.

If you have day-to-day care of the children, the courts can, for example, order the transfer of a joint lease to your sole name if you rent, or, if you’re a homeowner, state that you can stay in your present home until the kids reach the age of 18

Although your home will probably be the biggest financial concern, decisions about housing will be made in the context of the whole divorce settlement. So, for example, child maintenance payments may include mortgage payments.

Will I need to go to court to stay in my house?

In some circumstances you may need to go to court to protect your rights if you fear losing your home now that you have separated and if you can’t reach an agreement with your ex about housing.

There is no set way of dividing your assets now that you have separated and your housing is likely to be one of the largest assets so it is important that you look at the whole picture before deciding on a single decision about housing. The best way to look at your situation in its entirety is to go to mediation. The mediator will help you draw together all the information you both need to make an informed decision about what to do with your possessions, assets and liabilities and how to divide them. Family mediators will be able to help you reach agreement that will ensure that any agreement you reach is equitable and fair; satisfy the legal requirements for divorce or separation; provide for your individual needs now you are separated; and above all ensure that the children’s needs can be met.

It can be daunting and feel counter intuitive to think sitting in a room with your ex sorting out your once shared life will be possible, but mediation works. The mediators are highly trained and skilled at helping you navigate through the decisions you will need to make even if you are no longer on the best of terms
The benefits of mediation are that you will be able to discuss everything that is of concern to you from the smallest detail such as who gets the silver teaspoons to the biggest things like the house, pension, boat, bike, car etc. It means you will be able to tailor your agreements and decisions to meet your unique needs and those of your family whereas going to court often results in decisions being made that don’t really suit anyone’s needs.

Remember also that legal aid is still available for family mediation. You will have to find a mediator who has a legal aid contact and be means tested for eligibility. If you are eligible then mediation is free of charge.

In the unlikely event mediation does not help you come to an agreement, you may need to go to court. The court might order that:

• Ownership stays the same, but one of you is given the right to stay in the property until a fixed point (for example, when your youngest child reaches 18)
• Ownership of the home is transferred to one of you, with perhaps a lesser share of other possessions
• The home is transferred to one of you but with a charge secured on the property, so that the other party receives a set percentage when the home is sold
• The home is sold and the proceeds split between you, in whatever proportions seem fair, for you both to start afresh
• Ownership is transferred to your child.

Selling the family home is often seen as the easiest option if you’re splitting up.

But there can be problems: for example, you might have trouble finding a buyer, or be caught in negative equity (when the value of your home is less than the amount you owe on the mortgage). This could make it impossible to sell and split the proceeds.

You might also struggle to get a mortgage on a new property, especially if you have only a small deposit or if your income is low.

You may need to consider other options, such as one of you staying in the property while the other rents, or living together in the family home in the short-term.

Before you make a decision:

• Budget carefully before committing to a housing arrangement. No matter how tempting it may be to stay in your family home, make sure you can afford to continue living there
• Check out mortgage options, what’s available and what you can afford. Some building society and banks offer Fresh Start mortgages for people starting anew
• Find out if you’re eligible for state benefits to help with your housing costs
• Accept that your lifestyle will change, at least for now, and be prepared to compromise.

The Separated Parents Information Programme (SPIP) is designed to help you learn more about the challenges of post-separation parenting. The SPIP provides advice and guidance about how best to help yourself and help your children in your situation.

You can read more about the SPIP using this link

You can find your nearest SPIP provider on the Cafcass website