Gaynham King & Mellor Solicitors

Divorce and Separation

Divorce

If your marriage has broken down and you decide to divorce, you must, in the first instance, have been married for a period of at least 12 months before you can apply to the court for a divorce.

You have to show that your marriage has "irretrievably broken down" and that the breakdown is supported by one of the following:-

A. Your husband/wife has committed adultery (i.e. engaged in sexual intercourse with another person of the opposite sex) and you find it intolerable to live with him/her.

B. Your husband/wife has behaved in such a way that you cannot reasonably be expected to live with him/her.

C. Your husband/wife has deserted you for a period of more than two years.

D. You have lived separate and apart from your husband/wife for more than two years and your husband/wife consents to the divorce.

E. You have lived separate and apart from your husband/wife for more than five years.

If the divorce is undefended (that is you both agree to it), there is no need for either of you to go to court, the proceedings will take place administratively.

The person starting the divorce is known as the “Petitioner” and the person responding is known as the "Respondent".

It takes on average 6 months to dissolve a marriage through divorce, however the ancillary issues concerning property and finances can often take much longer to resolve.

Matrimonial Finances

The financial aspects of divorce are known as "ancillary relief".

Courts have wide and flexible powers to make financial and property orders in Divorce Proceedings and thus it is extremely important for you to consult a specialist Family Law Solicitor for advice upon your own particular circumstances.

The court does not use a formula when considering how finances should be divided between husband and wife but rather considers a list of criteria such as:-

  • Income, earning capacity, property and other financial resources.
  • The needs and financial responsibilities you each have.
  • The standard of living enjoyed by the family.
  • Your ages, length of the marriage and any physical or mental disabilities.
  • The contributions that each of you have made or are likely to make to the welfare of your family.
  • Your behaviour to each other, if the court thinks it would be unfair to ignore it.
  • Any benefits such as pensions, that you might loose because of the divorce.

Although the court can be requested to resolve financial disputes, there is an expectation that you and your husband/wife, (with the benefit of legal advice) will initially try to reach a voluntary agreement.  To do this, you must provide each other with full and frank details of your respective financial circumstances.

If voluntary agreement is reached then it is still advisable to have the agreement recorded in an Order of the Court known as a “Consent Order” to ensure that it is legally binding.

If you have children

The court expects you and your partner to agree where any children will live (Residence) upon separation and when, where and how the non-resident parent will see them (Contact). Consequently when the Divorce Petition is filed at court the Petitioner will be asked to set out such arrangements (the appropriateness of which will be assessed by the court) in a document known as the “Statement of Arrangements for Children”. If you and your partner do not reach agreement upon the issues concerning your children then your Solicitor will advise you upon the options available to you.

Separation

Some married couples choose not to divorce immediately upon separation, or indeed at all and are content to remain living apart.

You do not need a formal document to confirm that you are legally separated as it is enough to just live separate and apart. If the division of your assets, property and finances needs to be addressed however then it is advisable to record any agreement reached in this regard in a "Deed of Separation".

A Deed of Separation can be drawn up in a way that makes it enforceable in the future if you or your partner do not keep to the agreed arrangements.  It can also record any agreement reached to divorce, or not, at a later date.

Financial support for Children

The Child Maintenance and Enforcement Commission (CMEC) (previously “The Child Support Agency”) is responsible for dealing with financial support for children.

Where the CMEC does not have jurisdiction the matter can be referred to the court.

The CMEC will apply a straight forward calculation based upon the non-resident parent’s net (after tax) earnings to obtain a “basic liability calculation” this will be:

  • 15% for one child.
  • 20% for two children.
  • 25% for three or more children.

The basic liability might not necessarily be the amount that a non-resident parent has to pay as there are other factors to consider which might reduce the amount payable.  It is therefore imperative that you consult with a specialist family lawyer to obtain accurate advice upon your own specific circumstances.

At Gaynham King & Mellor all of our solicitors are experienced specialists in Family/Matrimonial Law whose expertise has been recognised either through the acquisition of accredited specialist status with the UK’s leading family law group – Resolution or through membership of the Law Society’s specialist Family Law and Children Law Panels.

Penrith Office