Divorce can feel overwhelming and when finances are involved, the complexity often multiplies. From dividing assets to understanding maintenance and pensions, there are countless questions people face during this process. In this blog, I'm stripping away the jargon and getting back to basics! Whether you’re just starting to explore your options or already navigating the legal steps, this guide will help you understand what matters most and where to begin.
What are the grounds for divorce?
Since April 2022, there has only been one ground for divorce, being ‘no fault divorce.’ Any grounds that could previously be relied upon have fallen away and the introduction ‘no fault divorce’ means that separating couples do not assign blame when applying for a divorce. The only ground that needs to be satisfied is that the marriage has broken down irretrievably.
How do I apply for a divorce?
The divorce process can be commenced by either party, or a legal representative. The divorce can either be a sole application or a joint application. If the divorce is applied for as a sole application, the party who applies is named as the “Applicant” in the divorce proceedings, and the other party is named the “Respondent.” If a joint application is made, both parties are named as the “Applicant.”
Divorce can be applied for on the government website and there is a court fee payable of £612. A clear, coloured scan or photograph of the marriage certificate will be required. If this was an overseas marriage, a translated version will also be required.
How long does a divorce take?
With no additional proceedings, such as financial proceedings, a straightforward and uncomplicated divorce process takes a minimum of six months. This includes two mandatory waiting periods. Once the divorce application is issued, there is a 20-week period before the conditional order (the order that declares the Court have reviewed the application and can see no reason why the application cannot proceed) can be applied for. Once the conditional order of divorce is granted, there is another waiting period of six weeks plus one day before the final order can be applied for. The granting of the final order means that parties are legally divorced.
Parties are encouraged to use the 20 week period between issue and conditional order to deal with the financial matters arising from divorce, such as financial settlements and clean break orders. It is advised that parties hold off on applying for a final order in divorce until such time that all financial matters are resolved.
What happens if my spouse wishes to defend the divorce or ignores the divorce application?
If one party is the sole applicant in a divorce application, the other party (respondent) must complete an acknowledgment of service before the divorce application is issued. Once the application has been issued, the Respondent will receive an acknowledgement of service which they have two weeks to complete. The acknowledgement of service acts as confirmation to the Court that the Respondent has received the paperwork and whether they agree with or intend to a defend the divorce.
If one party wishes to defend the divorce, they must make their position clear in the acknowledgement of service. A short hearing will be listed by the Court for a Judge to hear further details. The Judge at this hearing may order that the parties file statements and will list the matter for a contested hearing. At this hearing, the Judge will decide whether the divorce can proceed or not.
In the event that the Respondent does not complete the acknowledgement of service in time, the Court will need to determine that valid service of the application. A number of actions can be taken to achieve this:
- Personal service of the divorce papers on Respondent
- Application for deemed service
- Application for dispensed service
Is moving out of the family home a mistake in divorce proceedings?
It is not inherently a “mistake” to move out of the family home divorce proceedings and in many cases, one party feels they have no choice as they feel uncomfortable with continuing to live in the same property as their spouse post separation.
In the majority of cases, there will not be a second home to move into. The most cost-effective option would of course be to move in with family members. However, if this is not possible, it is important to consider the other options and consequences.
If one party rents a property, the party must ensure this is an affordable option in that they can afford to rent the property in the midst of financial negotiations. If the mortgage is in joint names, both parties will continue to be liable for the mortgage on the family home. There will also be the usual outgoings to be paid and potentially child maintenance.
The general position is that the costs of utilities of the family home are to be met by the party living there.
It is important to seek legal advice regarding the potential cost implications of using money from a joint account or borrowing money from lenders or family members/friends to make any option affordable.
How are assets split in a divorce?
The starting position in English law is a 50/50 split of matrimonial assets. Departing from this starting point is common as this is a guide point, not a hard rule. The actual outcome of asset splitting is dependent on a variety of factors, such as housing needs, income needs, dependent children, standard of living and contributions.
What assets cannot be split in a divorce?
The starting point in divorce is that assets acquired individually by one party pre marriage (pre-marital assets) and post separation (post-martial assets) are excluded from the matrimonial pot upon divorce. For example, if one party owned a separate property that was not the matrimonial home prior to the marriage, this could be considered a pre-marital asset. If one party receives inheritance after the parties separate, this could be considered a post marital asset.
However, in the event there are not sufficient assets or funds in the matrimonial asset pot upon separation, the pre and post matrimonial assets may need to be bought into the marital pot in order to meet the needs of one or both parties. Pre and post marital assets may be considered to have become matrimonial in the event that such assets have become intermingled with matrimonial assets.
Who gets the house in a divorce?
The matrimonial home is often the largest asset in a divorce. For many couples, the matrimonial home is owned as joint tenants 50/50, meaning each party is entitled to 50% of the net equity of the property. There is no set rule for who retains the matrimonial home in a divorce. Each case is assessed individually based on a variety of factors. As always, the needs of the parties is the driving factor under English law in the division of such asset. In the event there are children of the marriage, or from previous relationships, the welfare of the children is a key consideration and will impact on the division of this asset.
If it is one parties goal to retain the family home, they will need to buy the other party out of their share of the property or look at the possibility of offsetting this particular asset against another matrimonial asset. For some parties, retaining the matrimonial home will not be an option – either one party will not be able to afford to buy the other parties share, or the running costs of the family home are not manageable by one person. In the event the matrimonial home needs to be sold, it will be the net proceeds of sale that need to be divided between the parties.
Is my partner entitled to half of my pension if we divorce?
As above, the starting point on all matrimonial assets under English Law is 50/50. The pensions of each parties are considered to be matrimonial in nature. The specific split of a pension is dependent on factors such as the length of the marriage, how much of the pension was accrued during the actual marriage, the age of the parties and the parties ability to continue to build their pensions post-divorce, and each parties future income needs requirements.
There are various ways to split pensions:
- Pension sharing order
A court order by which a specific share of one parties pension is transferred into the pension pot of another party.
- Pension attachment order
A court order by which one parties pension scheme is ordered to pay a portion of the member’s benefits to the member’s former spouse when the member retires.
- Pension offsetting
Where one party retains their pension and the value of said pension is offset against another matrimonial asset, such as the family home. The value of said assets would need to be equal or apportioned appropriately for this to be possible.
If you have any further questions regarding divorce, please don't hesitate to get in touch with our family law team.