JPHLAW guide to ending your marriage
When your marriage comes to an end, you will probably have a number of things to sort out with your partner, which may include childcare, money, housing, and other property and possessions.
You and your partner could decide:
* to separate informally, without going to court
* to separate by drawing up a separation agreement
* to end your marriage formally by getting a divorce.
Who to inform when your marriage ends
If you and your partner are separating, you should tell:
* your housing benefit office
* your council tax office
* your mortgage lender
* water, gas, electricity and telephone companies
* your benefits office
* your tax office, particularly if you’re getting tax credits
* current school and future school if you have children and they are moving
* your bank or any other financial institution if you have a joint account. It may be advisable for you to freeze the account to prevent your partner withdrawing some or all of the money
* hire purchase or credit companies
* insurance companies, particularly if you have joint policies
* the post office, if you want mail redirected
* your doctor, dentist and child health clinic.
If you and your partner are married, you can separate by an informal arrangement. You will need to inform some or all of the people listed under heading Who to inform when your marriage ends. You may have a legal responsibility to tell:
* your benefits office, if you’re getting a welfare benefit such as income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Pension Credit or Income Support
* HM Revenue and Customs, if you’re getting tax credits
* your local council if you pay council tax or you get Housing Benefit or Council Tax Reduction.
If you and your partner agree, you can make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do ever go to court.
A court may change an arrangement made by a couple that it considers to be unreasonable or, in the case of a child, if it’s not in the child’s best interests.
Separating with a separation agreement
A separation agreement is a written agreement between a couple who intend to stop living together. It sets out how they wish to sort out financial arrangements, property and arrangements for the children. Examples of what you might want to include in an agreement are:
* to live separately
* not to molest, annoy or disturb the other partner
* to provide financial support (maintenance) for the other partner. A separation agreement would normally say that maintenance will stop if the partner starts living together with a different partner. Any agreement not to apply to court in the future for financial support does not count legally
* to provide financial support (maintenance) for any children of the relationship. Any agreement not to apply to a court or to the Child Maintenance Service in the future does not count legally
* who the children should live and have contact with.
The advantage of a written agreement is that it’s easier to make sure that you both understand what has been agreed. It also means that either partner can go to court to change the order in the future. It is advisable to consult a solicitor when drawing up a separation agreement, but you should work out in advance the general areas you want to cover. This will reduce the legal costs. You may get help with your legal costs.
For more information about help with legal costs, see Help with legal costs
A judicial separation is a way to legally separate from your partner without divorcing. You may want a legal separation if:
* you have religious reasons against divorce
* you have been married less than a year
* you want time and space to work out if you want to end the marriage.
The order does not end the marriage so neither partner is free to marry again (or enter into a civil partnership).
You can’t apply for a divorce until you’ve been married for at least one year. There are no exceptions to this rule. To get divorced the marriage must be recognised as valid by United Kingdom law and you must meet rules about how long you’ve been living in the country.
If you and your partner both agree to the divorce, this is called an undefended divorce. If one of you doesn’t agree to the divorce, this is called a defended divorce.
An undefended divorce is dealt with in the Family Court. You can find details of your local Family Court on the GOV.UK website at www.gov.uk.
In an undefended divorce, you don’t usually need to use a solicitor for the divorce procedure itself. However, it may be advisable to go to a solicitor for general advice before you apply for a divorce. A solicitor can be useful for advice on whether there are sufficient grounds, which grounds are appropriate and what evidence may be needed. If domestic violence is involved or if there are disputes about children, property or money which you and your partner can’t resolve, it’s usually advisable to consult a solicitor. If domestic violence is involved, you might get legal aid to pay for a solicitor.
More about domestic violence
A defended divorce is dealt with in the Family Court. In a defended divorce, both partners should always consult a solicitor. When the case is heard, you will usually need to use a barrister as well. Legal fees can be very high if there are long disputes. It is advisable wherever possible for both partners to try to come to an agreement before going to court.
What do you have to prove to get a divorce
The court will grant a divorce if you or your partner can show that the marriage has permanently broken down. Legally, this is called an irretrievable breakdown of the marriage. For a marriage to have irretrievably broken down, one of the following things must be proved:
* your partner has behaved unreasonably
* your partner deserted you at least two years ago
* you’ve lived apart for at least two years if you both agree to the divorce
* you’ve lived apart for at least five years if one of you doesn’t agree to the divorce.
A court may grant a divorce if one of you has had a sexual relationship with someone else of the opposite sex (committed adultery) andthe other partner cannot bear to carry on living together. You can’t give adultery as a reason for divorce if you have lived with your spouse for six months after you found out about their adultery. A woman who is raped hasn’t committed adultery but a man who commits rape has.
The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it’s satisfied that adultery has occurred and that the other partner could no longer live with the partner who has committed adultery.
If you both agree to the divorce, the court will usually only need statements and details of the sexual relationship. If one of you doesn’t agree to the divorce, proof will be necessary and this may be difficult and expensive to get.
A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping.
If one of you doesn’t agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.
If your partner has been violent towards you, you can get specialist help and legal aid may be available.
For more information about help you can get if your partner has been violent, see Domestic violence and abuse.
Desertion means that your partner left home against your wishes with no good reason. If your partner was away continuously for two out of the last two and a half years, you can apply for a divorce without the agreement of your partner. If you live together for a total of up to six months during this period, this does not stop the desertion being continuous. A court will want proof of the desertion and, if one of you doesn’t agree to the divorce, there may be disagreements about who deserted whom.
Living apart for two years
If you have lived apart (been separated) for two years continuously and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage. The two years apart will still be continuous even if you have actually lived together for up to six months in between.
Living apart for five years
If you have lived apart (been separated) for five years continuously, you can apply for a divorce without your partner’s agreement. Your partner can object to the divorce on the grounds that it would cause unreasonable hardship. However, a court will usually agree to a divorce as long as you’ve been separated for five years.
Applying for a divorce
The partner who is applying for the divorce is called the petitioner. The other partner is the respondent.
If you want to start divorce proceedings you will need to get the forms from the court. You can also get them from the Ministry of Justice website at www.justice.gov.uk.
The court office will tell you which forms you need, but court staff are not allowed to give legal advice to either partner or help you fill in the forms.
If you are applying for a divorce you can get general help from your local Citizens Advice Bureau. If you need more expert help about your divorce, you may need to get specialist advice, for example from a solicitor. Your CAB can help you find the right specialist advice. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
What the court will do
If you both agree to the divorce
If you both agree to the divorce, the court will look at the petition and grant an order called a decree nisi. No court hearing is needed.
Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a final order called a decree absolute. This confirms the divorce. After a decree absolute has been made, either partner can marry again or enter into a civil partnership.
If one of you doesn’t agree to the divorce
If you start divorce proceedings and your partner doesn’t agree, they will have to fill in court papers called an Answer. They have to say why they don’t agree that the marriage has broken down. There might be a court hearing for a judge to decide whether the marriage has broken down. These hearings are very rare, as in most cases a defended divorce will be resolved before a court hearing.
If the court agrees to grant the divorce, they will grant a decree nisi. Six weeks after the court grants the decree nisi, the partner who applied for the divorce can apply to the court for a decree absolute. This confirms the divorce. After a decree absolute has been made, either partner can marry again or enter into a civil partnership.
For more information about getting a divorce, see Divorce – a survival toolkit on the Advicenow website at: www.advicenow.org.uk.
Help with the legal costs of a divorce
You can’t get legal aid for divorce unless you’re a victim of domestic violence or abuse. Domestic violence or abuse covers psychological, physical, sexual, financial or emotional abuse.
You can get legal aid:
* if you’re a victim of domestic violence and need advice on family matters such as divorce, financial disputes or disputes about children
* for family mediation.
For more information about help with legal costs, and how to find a solicitor that does legal aid work in domestic violence cases, see Help with legal costs – legal aid
Children at the end of a marriage
Once the marriage ends, you’ll have to decide who will look after the children.
You may be able to make arrangements between yourselves about where the children live and contact with the other parent. However, if this is not possible, the court can make the decisions for you.
You could get help from a mediator to make arrangements about the children. If you can’t agree about the children and you need to apply for a court order, in most cases the court will expect you to arrange a meeting with a family mediator before it will consider you application.
If you are thinking of going to court about arrangements for your children, you should consult an experienced adviser, for example, a family law solicitor or go to a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
In certain pilot areas, there is a free helpline for separating parents in dispute about their children. Further information can be found on the CAFCASS website at www.cafcass.gov.uk
What orders can a court make about children
A court will only make an order concerning children if it feels it is in the best interests of the children to do so. This is called a child arrangements order. A child arrangements orders sets out the arrangements about who a child should live with, spend time with and have other types of contact with and when these arrangements should take place. The child arrangements order is one order which replaces the previous residence and contact orders.
The child arrangements order may include activity conditions, for example, attendance at a parenting programme. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.
For more information, on how to make arrangements about your children when you split up with your partner, see Sorting out arrangements for your children – a survival guide on the Advicenow website at: www.advicenow.org.uk.
Financial arrangements at the end of a marriage
At the end of a marriage, both parents are responsible for supporting the children financially, regardless of where the children will live.
You can also apply for financial support (maintenance) from your partner. You can do this whether you have children or not. There are three possible ways to arrange financial support:
* by agreement (called a family-based arrangement)
* through the Child Maintenance Service (CMS)
* through the courts.
You can get help to agree financial arrangements – see under heading Family mediation.
Agreeing financial support
If you both agree to financial support, this is called a voluntary agreement or family-based arrangement. It can be written down or it could be a verbal agreement.
You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children’s clothing and holidays.
If you need advice on the options available for arranging child maintenance and for advice on how to set up a voluntary child maintenance agreement, you can contact the Child Maintenance Options Service at www.cmoptions.org.
The Child Maintenance Options Service can help you:
* understand the options for making a child maintenance arrangement
* check that any existing arrangement is right for you and your child
* estimate how much child maintenance you would pay or get
* refer you to other organisations for help and advice.
Before you agree on a package of financial support, it may be useful to get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.
For more information about help with legal costs, see Help with legal costs – legal aid
For more information about family-based arrangements, see How to make a family-based child maintenance arrangement.
Child Maintenance Service (CMS)
If your marriage has ended and the children are living with you, you can use the Child Maintenance Service (CMS) to get financial support for your children. However, you don’t have to use the CMS if you don’t want to.
The CMS is the government child maintenance service that arranges maintenance for children under the 2012 Scheme.
For more information about getting financial support for your children, see Child maintenance – where to start.
You can apply for a court order for financial support at the end of a marriage. If you do, in most cases the court will expect you to arrange a meeting with a family mediator first before it will consider your application. The court will consider all financial circumstances of both partners, including pension arrangements. In some circumstances, the court can also make an order for financial support for the children.
A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.
You might get help with legal costs when you apply to court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called the statutory charge. Make sure your solicitor explains the statutory charge properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.
For more information about help with legal costs, see Help with legal costs
Property and possessions
When a marriage breaks down, all property owned by you and your partner will be taken into account by the court when arriving at a financial settlement. This will include any property owned individually by yourself or your partner either before or during the marriage. If either of you attempts to hide your ownership of property or possessions, you are likely to be penalised by the court.
It can be difficult to establish ownership of household possessions acquired during marriage. If one partner gave a present to the other and this intention was clear, the gift belongs to the person it was given to.
Wedding presents are considered to belong to the partner whose friend or relative gave them, unless you and your partner agreed something different.
You will also need to sort out ownership of possessions bought jointly or bought by one partner for joint use. If you cannot agree on this, you will need to go to court, although this is likely to be the least successful way of resolving the problem. Generally, the partner with whom the children live will be expected to keep domestic goods and equipment.
Housing rights at the end of a marriage
Both married partners have the right to live in the matrimonial home and neither of you can make the other one leave. This is case regardless of whether both of you, or only one of you, own or rent the home. This applies unless a court has ordered otherwise.
If your marriage breaks down, the court can help you or your partner to enforce short-term rights to the home. These are called home rights and can include:
* the right to stay in your home
* the right for you to move back in if you left
* in certain circumstances, the right to stop your partner from coming into the home.
If your partner has been violent to you, you might need help to make sure you are safe in your home, or have a safe place to stay. For more information about help you can get if your partner has been violent to you, see Domestic violence.
The court can also make long-term arrangements about housing. If there’s a disagreement about housing, the court can deal with the disagreement alongside the divorce proceedings. If you cannot agree and you need to apply for a court order about housing, in most cases the court will expect you to arrange a meeting with a family mediator first, before it will consider your application.
If you are thinking of going to court about your housing rights after the breakdown of your marriage, you should consult an experienced adviser, for example, a family law solicitor or at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
For more information on what happens to your home if your marriage breaks down, see Relationship breakdown and housing.
Family mediation and arbitration
What is family mediation
Family mediation is a way of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children. To use mediation, you both have to be willing to go along voluntarily. You can refer yourself or be referred by a solicitor or adviser. If you are involved in court proceedings, the court may refer you to mediation, or if there are children involved, to a CAFCASS officer.
An independent trained mediator meets you both (this can be separately or together) to understand the issues between you and help you reach an agreement. At the end of the mediation process, the mediator will write up the proposed agreement and check that both parties understand what this would mean for them. You may wish to get legal advice from a solicitor. For example, if you want the mediated agreement to be turned into a legally binding agreement.
To find out more about mediation, see Family mediation video.
What are benefits of family mediation
The benefits of mediation are:
* it gives couples a greater say in what happens
* it’s less stressful and involves less conflict than going to court
* it improves communication between couples
* it is quicker and cheaper than court action
* agreements can be changed when circumstances change
* it considers the needs of children above the feelings of the parties
* it is less upsetting for children involved and helps them continue important family relationships.
When to use family mediation
A couple can use family mediation services as soon as they have decided their relationship is ending and they feel able to discuss any disputes. Mediation can be helpful before legal proceedings begin, to encourage co-operation between the couple and to prevent disputes from getting worse and agreement becoming harder to reach in the future. Family mediation can also be used after a separation or divorce if new issues arise or there are outstanding issues to be resolved.
If you want to apply to the court for an order to settle a disagreement about the children, money or property, in most cases you will be expected to contact a mediator and arrange a Mediation Information and Assessment Meeting to see if you can resolve the dispute without going to court. The meeting can take place jointly or separately. There will be some situations where you will not need to attend a meeting, for example, where the police are investigating domestic violence.
Paying for mediation
You may be able to apply for legal aid to get financial help with the costs of family mediation. If you cannot get legal aid, you will have to pay privately for it. You should ask the mediator for a break-down of their charges as these may vary. You should ask about the options and shop around.
You can receive a free mediation session if one of you is getting legal aid.
For more information on financial help with the legal costs of family mediation, see Help with legal costs.
Find a mediator
You can find a mediator on the Family Mediation Council’s website at www.familymediationcouncil.org.uk.
Find out more about mediation
You can find out more about mediation at www.justice.gov.uk
Court-based dispute resolution
If you ask a court to make decisions about arrangements for your children at the end of your marriage, they will usually ask a CAFCASS officer to get involved.
CAFCASS officers work for the Children and Family Court Advisory and Support Service (CAFCASS) (or CAFCASS Cymru). They are independent of the courts and other agencies such as social services, education and health authorities. They are qualified in social work and experienced in working with children and families.
The CAFCASS officer will try and help you and your partner work out the best possible arrangements for your children.
Sometimes the court will ask you and your partner, and any other parents involved, to meet with the CAFCASS officer to see if you can sort things out without having to go on with the court case. If you can come to an agreement at this stage, the judge can make an order to confirm what was agreed.
If you can’t come to an agreement, the judge can order that a report is produced before the case goes any further.
Court-based dispute resolution schemes are free.
For more information about court-based dispute resolution and CAFCASS officers, in England visit the CAFCASS website at www.cafcass.gov.uk, and in Wales, at wales.gov.uk.
Family arbitration is a form of dispute resolution which enables couples to reach an agreement about family disputes without going to court. In contrast to family mediation, it is a more formal process and is similar to court proceedings. In addition, an arbitrator’s decision, known as an award, is final and binding on the parties.
At present, family arbitration is available only through the Institute of Family Law Arbitrators (IFLA) Scheme. The Scheme covers financial and property disputes on relationship breakdown. It does not cover disputes about children, except for financial disputes.
IFLA strongly recommends you get legal advice before entering into an arbitration agreement.
You cannot get legal aid for arbitration.
For more information about how to apply for arbitration and about the Scheme’s rules, contact IFLA at:
Institute of Family Law Arbitrators (IFLA) PO Box 302 Orpington Kent BR6 8QX Tel: 01689 820272 Email: firstname.lastname@example.org or through the contact form on their website Website: http://ifla.org.uk/
The Money Advice Service, Divorce and Separation website
The Advicenow website
Divorce – a survival toolkit at: www.advicenow.org.uk
National Family Mediation website
Information about separation, divorce and family mediation is available from the National Family Mediation website at: www.nfm.org.uk.
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