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.
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.
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.
Family mediation can help any family in the process of divorcing or separating.
For people who are divorcing or separating discussions can include:
- How assets will be divided
- What happens to the family home
- Where and how often the children will spend time with each parent
- Their future schooling and social activities, so that you as parents can put in place a full parenting plan now you have separated
- Support payments to be made
- And how children will keep in touch with their extended family and grandparents.
With the help of a mediator, the agenda can be anything you both agree to discuss and mediate.
It is common that you will have different issues that you consider to be the priority, but the mediator will make sure that everyone has the opportunity to discuss their concerns, and that a fair and proper amount of time is given to each person’s priorities.
In this way you will be able to work through all the issues that are affecting your life now you have separated and find common and agreed solutions to the problems.
It may seem like an impossible task to reach any agreement with your ex, but in mediation we have a very high level of success and mediators are familiar and trained to help you address each issue in turn.
Family mediators help you to focus on the future, so discussions will involve looking for practical actions to be taken to help you achieve settlement.
We understand it is an emotional time for all concerned, but by helping you focus on the future and working towards agreed outcomes we will see you through what seems like an impossible task.
The mediator won’t dwell on past issues. And they won’t try to allocate blame or guilt or pass judgement.
For grandparents, mediation can help restore contact to grandchildren and improve relationships with your ex in laws so that the children can continue to benefit from those cherished relationships.
To begin family mediation, the first step is to attend a Mediation Information and Assessment Meeting (MIAM).
This gives you an opportunity to find out what family mediation is about. And it helps you find out if it is suitable for you and your circumstances.
It also lets you consider the issues you will need discuss to achieve divorce or separation before you take part in family mediation.
If you and the mediator decide to continue with mediation, you will both organise a further meeting. The mediator will make sure you know what you need to do to achieve a legal separation. The mediator will also help you to gather the information, facilitate the discussions and help you develop options and solutions.
Mediators cannot give advice or act as a lawyer for either party.
Mediation is both confidential and “privileged”.
This means you are free to exchange information and ideas without the constraints of fearing these ideas may be used against you at a later date.
Because both people are working with the same base of information, it takes far less time to negotiate a resolution that makes sense to you both of them.
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.
It can be a challenge if your ex doesn’t want to try mediation to reach a settlement when you’re separating. It’s difficult in the heat of a conflict to think about trying to negotiate together to get things sorted.
It can seem easier to try to trigger a legal battle that is ultimately going to be far more expensive, more stressful and take much, much longer. But mediation can only work when both people agree to attend.
If your ex–partner won’t initially agree to mediate you can try asking them to attend an appointment on their own to start with. This can help avoid the tensions of facing each other. Your ex can then find out how it all works and make an informed decision about if it is right for them because they’ll have more information.
Most people are naturally quite anxious before they start mediation, but the huge majority of those who do go ahead and try it are greatly relieved that they did. They are often also surprised at the way they were able to finally make agreements and decisions on things that had previously felt it would be impossible to sort.
Family mediation does not focus on the emotional upset that separation causes, although experience shows that resolving some of the key issues can help ease stress and anxiety surrounding a break-up.
Family mediation is not about trying to keep couples together but helping them move on to the next stages of their lives.
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
Legal Aid is provided by the government to cover the cost of family mediation services for families in dispute.
It is means-tested. So you have to provide evidence of your current financial circumstances to prove you’re entitled to receive it.
If you are eligible, Legal Aid will cover all your individual mediation costs. It will also cover costs of the initial appointment and first mediation meeting for the other person, if they’re not eligible in their own right.
Eligibility for Legal Aid also enables you to get legal aid for legal costs, up to a cost limit.
- Family mediation is much quicker and less stressful than heading straight to court.
- It is usually cheaper too.
- It enables you to shape long-term solutions that are in your family’s best interests.
- Family mediation allows families to keep control of their own destinies. It helps shape settlements over parenting, money and property, instead of handing control over to the courts.
You may have heard about the MIAM. Before applying to court for a decision on finances or parenting, the law requires most people to attend a MIAM with an accredited mediator. This is short for Mediation Information and Assessment Meeting.
It is expected that most people experiencing divorce or separation will take responsibility for their post-separation life.
After all, the families are the experts in their own lives. So the family court expects to be the last resort after all other attempts to settle have failed.
The MIAM gives you an opportunity to find out what mediation is about. You can find out if it is suitable for you and your circumstances. In the MIAM you will look at the issues you have to consider to achieve divorce or separation. And you will be able to assess the situation before taking part in full mediation.
However, undertaking full family mediation is voluntary.
Our mediators will help you proceed with mediation in the most comfortable way for you and your circumstances. However, if it goes ahead both people do need to agree to attend. But in some cases it is possible to make an arrangement whereby both people use separate rooms during family mediation.
*The law makes a small number of exceptions to this rule, for example where domestic violence has occurred or in cases of bankruptcy.
Once you have decided to go ahead with family mediation, contact us.
Then we will quickly begin arranging an appointment for you with one of our expert family mediators.
Some family mediation cases are eligible for funding from Legal Aid.
Here are some examples of cases the Legal Aid Agency would consider eligible:
- You’re getting divorced and therefore need to sort out financial arrangements.
- Child arrangements have broken down, and so you are not seeing your children.
- Any dispute following family breakdown that may end up in court.
At your initial family mediation appointment (the MIAM) you can ask about legal aid for mediation.
They mediator will discuss what issues need resolving. Some family mediation cases are eligible for Legal Aid. But others are not. Examples of cases the Legal Aid Agency would consider eligible are:
- You are getting divorced and need to sort out money.
- Child arrangements have broken down and you are not seeing your children.
- Any dispute following family breakdown that may end up in court.