Frequently Asked Questions

You do not need to have a solicitor acting for you to apply for a divorce, however, it is advisable to  consider working with family law solicitors in order to achieve the best positive outcome.

The online system is set up to allow both solicitors to submit applications, and also for the parties involved to  file divorce papers themselves, should they wish to do so.

The law surrounding divorce changed in April 2022 to a no-fault based system. This means that one spouse no longer needs to ‘blame’ the other spouse for the breakdown of the marriage.

Most divorces are now dealt with online through the HMCTS portal and the initial application is made online. To make an online divorce application, you will also need to have your original marriage certificate with you when making the application so that the correct details can be inputted into the divorce application.

You can instruct one of our divorce solicitors here at Grayfords to represent you in your divorce proceedings and they will do all of the relevant applications for you.

Our lawyers can only advise upon the law in England and Wales but we frequently handle international family law cases which involve the possibility of getting divorced in another country or international relocation cases.  We work very closely with our international partners abroad who are some of the most highly regarded lawyers in their country and we have particular expertise in identifying whether it is possible for proceedings to take place in more than one country and, if so, in identifying which country might produce the better outcome for you.

You will need to start divorce proceedings by making an online divorce application through the online HMCTS portal. You will also need to have a copy of your marriage certificate when making the application and there is a Court fee which is payable to the Court.

Telling your spouse that you want to divorce can be very challenging. These types of conversations can be very difficult and it is therefore best to be as straightforward and to the point as possible. It is also wise to consider the timing of such a conversation and to make sure that you are both able to speak privately and openly. You should also bear in mind that your spouse may be on a completely different page to you and the news might therefore come as a shock to them if it is a conversation which they are not expecting.

If you are concerned or fearful about how your spouse is likely to act, our expert divorce solicitors are here to help support and guide you.

Divorce is certainly not considered to be a failure and in fact, it can demonstrate strength for two spouses to acknowledge that there has been a marriage breakdown and perhaps they do not make each other happy anymore and no longer wish to be together.

Divorce may not always be the right answer and this will always be dependent on each individual case. If you have any concerns about the process or you are unsure about whether divorce may be right for you, it is advisable to seek out family law advice. Our solicitors are here to help guide you, so don’t hesitate to contact us today for an initial free consultation to find out more about how we can help.

Since the law changed in April 2022, it is only possible to defend a divorce on very limited grounds. Spouses no longer have the option to defend a divorce simply because they do not wish to get divorced.

If one spouse wishes to apply for a divorce but the other does not, unfortunately, there is not much that can be done as divorces can only be defended under very limited circumstances now. If you do not wish to get a divorce but your spouse has suggested one, it is possible for you to try and seek some sort of relationship help or marriage counselling to see if you are able to work through your issues before proceeding with a divorce.

It is very unlikely that you will receive no financial entitlement following divorce proceedings, however, the entitlement each spouse will benefit from is entirely dependent on the facts of each case and what assets there are. Our solicitors will be able to give you financial advice on what level of financial entitlement you should be seeking in the event that divorce proceedings are issued.

It is also worth nothing that the financial aspects of a divorce are dealt with separately to the divorce itself. Therefore, it is usually advisable to seek assistance from a family law solicitor in relation to the financial aspects of the breakdown of the marriage, even if you and your spouse are choosing to deal with the divorce proceedings yourself. 

Our solicitors will be able to give you advice in relation to the divorce process, your legal rights, and any possible financial entitlement once we understand more about the background to your case. Please do not hesitate to book in for a free initial consultation with one of our family solicitors, whereby we can obtain all the necessary information about your case and we can then let you know how we are able to assist you.

If you have a difficult spouse who is likely to try and drag out divorce proceedings, you should consider issuing a sole divorce application, rather than a joint application. This will allow you to have much more control over the process and you will be able to make any relevant applications within a timely manner.

If your spouse is refusing to acknowledge receipt of the divorce application, there are applications which you can make to progress the divorce, in the absence of their co-operation.

You will be notified by the Court if your spouse applies for a divorce. After considering the application, the Court will arrange to send you a copy of the divorce application and you will then be required to complete an Acknowledgment of Service, confirming you have received the divorce papers.

This is dependent upon both the facts and the asset base in each case. It is open to parties to reach an agreement between each other which can then be recorded in a Consent Order as part of their financial settlement. In the absence of an agreement being reached between the parties, a Court application will have to be made and a Judge will make a decision about how the financial matrimonial assets are to be divided. The Court has a range of powers in terms of the Orders it can make, which include, but are not limited to: property adjustment orders, periodical payments and maintenance orders and pension sharing orders.

The best way to ensure your assets are protected, in the event of divorce proceedings, is to enter into either a Pre-Nuptial or a Post-Nuptial Agreement. A Pre-Nuptial Agreement is drawn up before parties get married, whereas, a Post-Nuptial Agreement can be entered into after the parties have already got married.

It is possible to argue that property owned by one party prior to the marriage should be considered to be a ‘non-matrimonial asset’. The Court does, however, have the ability to consider taking a non-matrimonial asset into consideration if there are not sufficient matrimonial assets to meet both parties’ housing needs, and, more importantly, the housing needs of any dependent children, following a divorce.

If you are concerned about your spouse making a claim against a property owned by you prior to marriage, please do not hesitate to contact our expert family law solicitors.

The general rule with debts is that each party is responsible for any debts in their sole names and any joint debts are the responsibility of both parties to service equally. It is, however, possible that a debt in only one party’s sole name is considered to be a joint debt, if it was accumulated during the marriage and if it was for a joint expense (for example, a family holiday or furniture for the family home). If you are concerned about any such financial liabilities, then it is advisable to seek financial advice as soon as possible.

If there is a sealed financial order in place following the divorce which dismisses future claims, it is not possible for either spouse to make further financial claims against the other following the divorce.

However, if there is no financial order in place, it is potentially open for either spouse to make claims against the other in the future, even after the divorce proceedings have been concluded.

Your ex-spouse will not be able to make any claims against any assets you accrue in the future and post-divorce, provided there is a financial order in place which dismisses any future claims. If there is no such financial order in place, it remains open to either spouse to make financial claims against their ex-spouse at any point in the future.

It would be difficult for an ex-spouse to make a claim against an inheritance received after divorce proceedings, particularly if a financial order is in place.

If there is no financial order in place, although an inheritance of this nature would be considered to be a ‘post-separation’ asset, the Courts can sometimes make orders taking such assets into account, if required in order to meet both parties’ needs following a divorce.

The rules surrounding inheritance will very much depend on each individual circumstance. Inheritance is usually considered to be a non-matrimonial asset unless it has become ‘matrimonialised’ during the course of the marriage. This usually happens where the spouse receiving the inheritance puts the inheritance towards a jointly owned or otherwise marital asset (eg. To pay down the mortgage on the family home). In situations like these, it would become very difficult to argue that the inheritance remains a non-matrimonial asset.

It is also possible for a Court to take a party’s inheritance into consideration if there are insufficient matrimonial assets to meet the parties’ needs following a divorce. Although they may not make an order for the inheritance to be shared between the parties, the Court can consider it being an asset available to the spouse who has received the inheritance, thereby giving them a slightly smaller percentage of the overall matrimonial assets.

If you have a sealed financial order in place which your spouse is refusing to comply with, you can make an application to the Court for enforcement. It is usually advisable for an application of this nature to be made quite soon after your spouse defaults on the order, as it may take some time for the Court to resolve the dispute.

The most amicable and cost-effective way to try and resolve a family dispute (either in relation to children or finances) is by having open conversations with your spouse. Of course, this is not going to be appropriate in all cases, particularly where there is domestic violence involved. If discussions with your spouse directly is not a feasible option, you can also attempt mediation, or you can even engage in correspondence via solicitors to try and reach an agreement.

If an agreement is reached during divorce mediation in respect of the finances, it is extremely important for you to have this agreement recorded into a Consent Order so that it becomes legally binding.

If you are unable to reach an agreement (either directly, in mediation, or via solicitors) with your spouse regarding matrimonial assets, child arrangements, or other issues pertaining to your divorce, then you have the option to make an application to the Court to ask a Judge to make a decision for the both of you.

It is possible for a child to live with both parents and this is known as a ‘shared care order’.

It is also possible to have a Consent Order drafted in relation to any arrangements in respect of your children.

In absence of an agreement as to childcare arrangements being reached, it is open to either party to make an application to the Court to have this dispute resolved.

If you want to appoint a legal guardian for your child or children in the event of your death, you have the ability to appoint a guardian in your Will. If you were to die before the other parent, parental responsibility will usually pass to the surviving parent. A Guardian will usually only take responsibility for any child or children if both parents were to die.

Further advice around the process of drafting a Will and appointing a guardian within your will should be obtained from a specialist Wills & Probate Solicitor.

It is also possible for a family member to apply for what is known as a ‘Special Guardianship Order’, if either of the child’s parents become unable to look after the child.

A person is able to apply to become a child’s special guardian if they are not one of the child’s parents and provided they are over the age of 18. There are certain eligibility requirements for when an individual can apply for a Special Guardianship Order.

If you wish to apply for a Special Guardianship Order or if you would like to receive some further advice on this area, please do not hesitate to book in for a paid consultation with one of our family law solicitors.

Grandparents do not have an automatic right to have contact with their grandchildren because they do not have parental responsibility. It is, however, open to grandparents to make an application to the Court for contact with their grandchildren, however, permission does need to be sought in order to bring an application of this nature.

A mother automatically obtains parental responsibility upon the birth of the child.

A father has parental responsibility if he is:-

• Married to the child’s mother at the time of their birth;
• Is named on the child’s birth certificate

Where neither of the above applies, it is also possible for the parties to enter into what is known as a Parental Responsibility Agreement, if the child’s mother then agrees for the father to have parental responsibility.

Alternatively, if it is not agreed for the father to have parental responsibility, it is open to the father to make an application to the Court for a Parental Responsibility Order.

The first step towards having contact with your child should be to try and reach an agreement with the other parent. This can either be done by having negotiations with them directly, or by attending mediation or some other form of non-Court dispute resolution. If an agreement is reached in respect of the child arrangements, you can have a Consent Order drawn up, reflecting the agreed terms.

If you are not able to reach an agreement, either parent has the option to make an application to the Court for a child arrangements order. At a Final Hearing, a Court will make a decision about who the children should live with and how much time they should spend with the other parent.

The party who issues the application is usually responsible for paying the initial Court fee associated with making the relevant application.

If you have a solicitor acting for you, each party is responsible for paying their own legal fees for any proceedings relation to child arrangements. Whilst it is possible to apply to have a costs order made against the other party, this is very rare and these types of orders are usually only made in exceptional circumstances. Our family law solicitors will advise clients if ever this is an option that is available to them.

This is very much dependent on the facts of each case. Parties have the option to reach an agreement in respect of the child arrangements and where this cannot be achieved, an application can be made to the Court.

It is not possible to avoid paying child maintenance (also known as child support) if you are the parent of the children and you should be making child maintenance payments.

Child maintenance is governed by the Child Maintenance Service (CMS) and their online calculator can determine how much child maintenance you should be paying and/or receiving.

The CMS will need details of the payer’s gross salary, together with the number of nights overnight contact the payer spends with the children. The CMS will also need details of how many children you both have and the calculator will then generate a figure.

Child maintenance payments are no longer payable once a child turns 16, unless they are still in full-time education up to A-level or equivalent (on a course amounting to 12 hours of study minimum each week), in which case, the payments will continue until the child turns 20.

Spousal maintenance is separate to child maintenance. Whether or not spousal maintenance is payable will very much depend on the facts and the assets in each individual case. There is no equivalent of the CMS’ online calculator for child maintenance where spousal maintenance is concerned.

Factors that are taken into consideration when a Court determines whether spousal maintenance becomes payable includes things such as length of marriage, income and earning capacity of both parties and each party’s monthly expenditure. Lifestyle can also be taken into consideration by the family court where there is a huge disparity in each of the party’s incomes. Usually, spousal maintenance is only payable in circumstances where the receiver of maintenance is unable to meet their expenditure with their income and they have a shortfall, which can be met by the paying party if they have a surplus of income. 

As with child maintenance, it is not possible to avoid paying spousal maintenance if a Court has determined that this is to be payable. If a spousal maintenance order is made, the Court will include a term during which the order is to remain in place (eg. One year, three years etc). The term for how long the spousal maintenance order will remain in place is dependent on the facts of each case and the financial circumstances of both parties. There may also be ‘trigger events’ built into the order which allow for the spousal maintenance payments to cease upon a particular event occurring (eg. The receiving party re-marrying or cohabiting with another individual).

You can get a divorce without obtaining a financial settlement, however, if your financial settlement is not dealt with at the time of the divorce, you and your ex-spouses claims will remain alive against each other. This means that even if the divorce proceedings are concluded, your ex-spouse will have the ability to make financial claims against you at any point in the future if you do not have a sealed Consent Order in place which dismisses future claims.  It is therefore advisable that you deal with any financial settlement at the time of the divorce.

If you remarry, without having made any financial claims, you will no longer have any capital or income claims under the Matrimonial Causes Act against your ex-spouse.  Also, if you have divorced but have not asked the Court to approve a financial settlement your ex-spouse could still have financial claims against your Estate in the event of your death. It is prudent, therefore, to ensure that a financial settlement is reached and an Order of the Court is made enshrining that settlement into it alongside the divorce.

You can absolutely make a divorce application if your spouse has committed adultery, however, you do not need to explain the reasons for the divorce when completing an application under the new divorce law now. The Court just needs to be satisfied that your marriage has broken down irretrievably with no prospects of a reconciliation.

You do not need to plan a divorce secretly, as your spouse will be notified after the divorce application has been issued by the Court in any event. Depending on the circumstances of your separation, it may be best to discuss the divorce with your spouse before applying to avoid the application taking them by surprise. If your spouse is aware you are intending to proceed with the application, this gives them more time to prepare for the process and instruct a solicitor (should they wish to do so).

It can be very mentally and emotionally exhausting dealing with a narcissistic spouse, however, we are Grayfords are here to help you with any challenges you are likely to encounter during the divorce process. Whilst you may initially have intended to deal with the divorce process yourself, it may be necessary for you to consider enlisting the help of a divorce solicitor to help you with navigating the process and managing a difficult spouse. This may particularly be the case where your spouse is very controlling and you would not feel comfortable having to have discussions with them directly either in relation to the divorce, finances or the child arrangements.

It is advisable to seek legal advice at the outset of issuing divorce proceedings so that you can better understand the process involved and so you are well prepared for what to expect.

Divorce proceedings can also be very stressful and emotionally draining and it may also benefit you to speak with a therapist, or to speak with a divorce and parenting coach as you go through this process. Our team at Grayfords are able to put you in touch with any relevant therapist and family coaches, so please do not hesitate to reach out to us if you are interested in any of these services during the course of your matter.

Since the change in law in April 2022, you no longer have to cite a reason for why the marriage has broken down. You will just need to inform the Court, when making your divorce application, that you consider the marriage has broken down irretrievably with no prospects of a reconciliation.

Parties will often have to file and serve detailed witness statements during the course of any Court proceedings. All witness statements are required to be signed by a statement of truth, confirming that the contents of the statement are true to the author’s knowledge and belief. In some instances, a party will also need to give oral evidence at a hearing and they will also need to answer questions put to them by the other party’s legal adviser.

If you think that the opposing party has been dishonest during the proceedings, any relevant documentation about this should be included within your witness statement and any subsequent Court Bundles ahead of each hearing. The best forum for the opposing party to be questioned on any lies or factual inaccuracies will be at a Final Hearing where they are required to give oral evidence. It is, however, important to note that the Court’s main focus is going to be on resolving the issue at hand, rather than becoming involved in an argument about factual matters and whether these did or did not happen.

It is possible to have what is known as a ‘fact finding’ hearing, where serious allegations have been made by one party. A Judge will then have to go through a detailed schedule of all of the allegations raised, consider the other party’s response and then determine whether or not they think that incident occurred. The outcome of any fact finding hearing can then have an impact on future proceedings, i.e. for a child arrangements order.  

If a party is found to have lied to the Court, there can be serious repercussions, such as: being held in contempt of court, a costs order being made against them, or the Judge taking a negative view of that party’s case which may then influence their overall decision.

It is possible for ex-spouses to reconcile even after divorce proceedings have been concluded. It is important to have open and honest conversations with your ex-spouse about any possible reconciliation to see if you are both on the same page. You may also wish to explore attending couples therapy or individual therapy, in order to work through your issues and to see if these can be resolved.

It’s never too late to start divorce proceedings. It is important to seek legal advice from family law solicitors and let them guide you on how to start the process and what important things you need to look out for. Our 3 mistakes to avoid are as follows:

1. Seek financial advice so that you are able to plan your finances appropriately following the division of your assets (this may be particularly important where pensions are concerned).
2. Rely on your support network of family and friends to help you through what is likely to be a very challenging time in your life.
3. Do your research and plan your finances carefully. This is especially true where the property is concerned. If you will need to purchase a new home following the divorce, it is important to bear in mind that your mortgage capacity is likely to become more limited as you get older.