We spoke to Aysen Soyer, Head of Family Law at Wilson Solicitors; Zahra Pabani, Partner and family law expert at Shakespeare Martineau; and Antonia Felix, Family Associate at Mishcon de Reya, to get the lowdown on everything you need to know about cost, process and prenups.
What are the most common causes of divorce?
Zahra Pabani: Unfortunately divorce in the UK is very fault-based. ‘Irreconcilable differences’ or ‘irretrievable breakdown of marriage’ is what you always cite, and then you say why – so you have to say whether it’s adultery, two-year separation, five-year separation, desertion or unreasonable behaviour. The most common one is unreasonable behaviour – no one wants to wait two years or five years for a divorce and desertion is very hard to prove. It can be really hard because you might have just fallen out of love and you don’t want to blame someone, but you have to.
What is the cost of a divorce?
Antonia Felix: There are usually two parts to a divorce – the divorce itself and the resolution of financial matters. For the divorce, there is a court fee of £550 and if you instruct a solicitor to prepare and lodge the paperwork, the costs can be a further £1,000. In terms of the finances, depending on how big the asset pool is, if you litigate through to a final hearing (which can take 12-18 months) the costs can reach six figures. If you are able to reach an agreement between yourselves with the assistance of a solicitor, your costs will be significantly less.
What is the process from start to finish?
Antonia: The first step is for one party (the Petitioner) to start proceedings by sending a divorce petition to the court – this sets out the reason for the breakdown of the marriage. The petition will be sent to the other party (the Respondent), and the next step is for the Respondent to complete and send a form to the court confirming that they have received the divorce petition. Once that has been done the Petitioner can apply to the court for a "decree nisi", the mid stage in the process which confirms that the marriage has broken down. There is then a six week "cooling off period" before the Petitioner can apply for a "decree absolute" – which formally brings the marriage to an end.
Financial proceedings (if there are any) will usually run parallel to the divorce proceedings and can take up to 18 months for a final order to be made by court. However, the parties can settle at any time during the process and are encouraged to do so by the court. Usually, the parties would be advised not to apply for the decree absolute until the financial aspects of the separation have been sorted out.
How long can the process take?
Aysen Soyer: Where the financial or child arrangements are complex or disputed, the process can last a lot longer, but, on average, you are looking at around six months from conception to conclusion.
How long does a divorce take to finalise?
Aysen: It is not unheard of for the entire process, from the “decree nisi” to the “decree absolute”, to be complete within as little as three months, but it is rare. In complex and hotly disputed cases, such as those including disputed child arrangements, the process can continue for years.
Do you need a lawyer to get divorced?
Zahra: I’ve seen people do online divorces and they’re ok, but if there’s a bit of a complication in there, financially or with children, they’re not robust enough. My advice would be take early advice, then make your decisions and do your planning. There are lawyers who will give you a free hour, and it’s a good idea to take it, and then make your decision after that. Speak to one or two. Divorce is such a personal thing that you need to have a rapport with who you’re going to use and trust them implicitly.
What happens when one person wants to get divorced and the other doesn’t?
Aysen: Typically, being served with divorce papers is enough to convince the other party that the relationship is probably over. There are, of course, instances where the Respondent holds the process up; occasionally because they are hoping for a reconciliation, but more often because relations have become so embittered that an opportunity to cause the other party distress is seized upon. If the Respondent consistently refuses to engage with the process, however, mediation is usually necessary before a court makes the final decision on the issues that the parties are unable to agree on.
What do you do if you can’t locate your spouse?
Antonia: The court has to be satisfied that all reasonable steps have been taken to bring the divorce petition to the Respondent's attention. If you cannot locate your spouse you can ask the court for permission to serve them at their last known address or at an email address. It is also possible to ask the court to allow you to serve the papers on them care of one of their family members. In extreme circumstances the court can dispense with the need to serve the Respondent.
Do you find that unhappy couples with kids stay together for longer?
Aysen: When two people share children, they also share a certain sense of responsibility to do “what’s best for the kids”, which often results in unhappy couples staying together for longer. It’s common for unhappy parents to wait until a child has grown up before parting ways. However, research suggests that this could in fact cause more psychological harm to the child or children concerned than a well-managed separation.
How is it decided who gets custody of the children?
Antonia: The term "custody" is no longer used – it’s now called "child arrangements". The courts in England and Wales do not intervene in the arrangements for children unless the parents cannot agree. If no agreement can be reached, an application for a “child arrangements order” should be made. These orders decide who the child/children are to live with and/or spend time with. Some orders will be very specific regarding the arrangements and others will be more open with detailed arrangements to be made between the parents. Each dispute is looked at on a case by case basis. Previous arrangements for the children are looked at, so if both parents were heavily involved with the children's day-to-day lives before their separation, then the division of time between the parents will likely reflect this. However, practical considerations will often dictate the future arrangements: where the parents will be living, the age of the children, and what is best for the children.
How are assets split between couples?
Zahra: Same sort of scenario – have they come to us with an agreement? Can the lawyers make an early agreement, and if not, can we go to mediation? Finances are a bit more difficult because you have to swap full and frank financial disclosure. There’s a court form called ‘Form E’, in which you must fill in your incomes, assets, debts, trusts, properties abroad, what you spend in a month and 12 months of bank statements: you have to have evidence of everything. Then the lawyers try and help you come to a settlement. But people do try and hide assets. Relationships break down because they don’t trust each other anymore. Even if you agree things, you have to have a court of order on finances.
Do all divorce proceedings go to court?
Antonia: All divorces go through the courts, but only very rarely would either of the spouses have to attend a court hearing. If financial proceedings take place then the couple will have to attend each court hearing (if the case goes all the way to a trial). There will be three court hearings. All of these are held in private but members of the media can attend and report on aspects of the case. If the couple is able to reach an agreement regarding the finances they should ask the court to turn that agreement into an order. This can be done without having to go to court.
What is the purpose of a prenup, and are they always upheld?
Zahra: They don’t form part of the law of this land – in other countries around the world prenups are a part of law. You don’t need to be a multimillionaire to have one. If you do a prenup and you do it properly, the court wants to uphold it. If there wasn’t full and frank disclosure – say, if the husband was a millionaire and the wife had no idea about it – it’s never going to stand. But if the prenup still works ten years later and doesn’t leave one of them on the street, then it will be upheld. But if it doesn’t work anymore, for example if he’s got £3m and she’s got nothing and has to house five kids, then that prenup doesn’t work and won’t be upheld.
So then you start from scratch, and you look at equality; try and split all the capital equally. When you are looking at a couple’s finances you look at what’s available, and then at what everybody needs. What are their mortgage capacities? What are their financial resources? These are taken into consideration.
What’s the difference between a divorce and an annulment?
Aysen: Unlike divorce, you can get a marriage annulled at any time after the wedding (for a divorce, you have to wait at least a year). In order to qualify for an annulment, you need to be able to prove that the marriage was either not valid (if you are related, for example), or it was defective because you were intoxicated, or you did not consent to the marriage.
What is the most common mistake people make in divorce?
Zahra: They don’t take advice. Take advice, so you know the score. Don’t be so scared of lawyers. Get some free advice so you know the score. Then you’re making an informed decision.
People also focus too much on principles, and principles are expensive. Clients say, “Because they committed adultery, I want to screw them to the ground”. But the way the law sees it, the adultery was perhaps a symptom of an unhappy marriage. I know this is easy to say, but people start getting embedded in the emotional side. Go to counselling, go to Relate, go to your GP. If you keep the raw emotions bottled up it’s going to be more difficult to sort things out.