Getting divorced : Frequently asked questions

When you are getting divorced there are a number of frequently asked questions you may need the answer to. By way of a quick-fire round, below are some of the questions asked:

6 frequently asked questions about getting divorced

Below we answer 6 of the frequently asked questions we receive about getting divorced.

1. Do you have to get divorced in the same country that you got married in?

The short answer is no.

This is a question of legal jurisdiction and will depend on your personal circumstances. The ability to apply in England and Wales is based on jurisdiction contained in legislation.

This may depend on where you (and your spouse) are “habitually resident”. This is the country in which your life is mainly based. You must be settled there and intend to remain settled there.
Another of the factors is the jurisdiction in which you (and your spouse) are domiciled. This is the country you consider your main permanent home. If you have moved abroad but consider you are domiciled in England and Wales (for example you have always intended to return to England), this may impact on whether you can apply for a divorce here.

There may be reasons that you wish to petition for a divorce in a certain jurisdiction and, if there is an international element to your marriage or your living situation, you may wish to seek advice from lawyers in more than one jurisdiction to determine where it would be best to begin divorce proceedings.

2. If you petition on adultery or behaviour, does the other person have to pay all of the costs?

Not necessarily.

The divorce petition asks whether the petitioner wants the other spouse (the respondent) to pay the costs. These are the costs of the divorce only and do not include any legal costs incurred in resolving financial or child-related issues. This is the case on all divorce petitions and not only those based on adultery or behaviour.

The petitioner has a range of options available, from claiming all of the costs of the divorce proceedings to claiming no costs. The approach taken by the petitioner will usually depend on the parties’ particular circumstances.

Even if a claim is made, the respondent might dispute the claim. This is relatively unusual, as it is usually not proportionate for either party to engage in substantial disputes in relation to the divorce costs. Arguing about costs will usually lead to both parties incurring further significant legal costs and serious consideration should be given as to whether this is beneficial.

Academically, most courts are likely to follow a broad rule that fault applications (adultery or behaviour petitions) may attract an order for costs, but that separation-based petitions are less likely to attract an order for costs. However, from a practical perspective, it is usually much better to agree costs in advance of the petition being filed if at all possible, whatever the basis of the petition.

3. If you admit adultery or behaviour, does this impact on the finances?

Not necessarily.

Adultery does not usually have an impact on financial matters. It is only a fact upon which a petition for divorce can be filed. It will not usually be a significant factor within financial matters (which are dealt with separately to the divorce process itself). Cohabitation might be relevant for financial matters, but not the adultery itself.

Unless behaviour is significant (and it would be inequitable for the court to disregard the respondent’s conduct), particulars of behaviour in a petition will not usually impact on any financial settlement or financial remedy proceedings. Very serious allegations might require that a respondent requests an amendment to the divorce petition, to avoid any risk.

Respondents are usually able to confirm their agreement to a divorce proceeding without making admissions in relation to particulars of behaviour. Respondents can also protect their right to respond to such allegations within any financial remedy proceedings if necessary.

The respondent has the right within divorce proceedings to oppose the allegations of behaviour and have them proven on a balance of probabilities. In practice, defending a petition in this manner is unusual , costly and of little or no ultimate benefit.

4. When you get decree absolute, does that finish the divorce?

Decree absolute ends a marriage and is the final stage of divorce proceedings.

However, this does not necessarily deal with everything that needs to be resolved on divorce. A decree absolute does not resolve financial matters or impact on either party’s ability to make an application to the court for financial matters. You should ensure that you seek advice about financial matters and that any settlement is resolved by way of a court order to ensure certainty and finality. Financial claims can take place many years after the divorce itself, if not properly resolved at the time.

5. Are divorce proceedings expensive?

Not necessarily.

The costs of legal advice are a common concern for clients when going through divorce proceedings, particularly due to the lack of legal aid currently available for family cases. Many family law solicitors charge an hourly charging rate and this can cause clients concern that costs will escalate and become unaffordable.

Online divorce applications can be made by litigants in person or by lawyers. The court fee is £550. Legal costs will depend on whether divorce proceedings are agreed or contested, whether documents need amending or whether any court hearings are necessary. Straightforward and uncontested divorce proceedings can be relatively inexpensive.

When considering cases where costs are contested, the court usually only permits costs against a respondent on undefended proceedings of between £600 and £1,200 plus VAT, plus the court fee of £550. The level of fees a court may judge fair will depend on the individual circumstances and the location of the solicitors. Most of the time, the court does not engage with a process of assessment in relation to legal costs, because the spouses agree how costs should be shared. You will always be responsible for your own lawyers’ costs.

Defended proceedings are more complex and require additional legal work. This can significantly increase the costs of the divorce proceedings. If you are unsuccessful in defending proceedings, you may be liable for the other party’s costs. This should be considered before deciding whether to defend any proceedings.

Most clients fund their own legal costs, either from income or capital. Where there are not sufficient financial resources to do so, other forms of funding are often considered, including loans (either commercial or from family members), litigation lending, insurance policies, a “Sears Tooth” agreement or legal services payment orders (when the other spouse contributes to the costs of the spouse applying). Eligibility and whether such funding is desirable will usually depend on an individual client’s circumstances.

6. Do you have to go to court to get a divorce?

Not usually.

If a divorce is uncontested and there are no additional complexities, this is usually a paperwork exercise for the court and will not require either party to attend at court for any hearings.
The court will receive the petition, check that the initial requirements are met and issue the documentation to all of the parties.

The respondent is sent an acknowledgement of service form to complete and return to the court. This will confirm that they have received the paperwork, the jurisdiction, whether they intend to defend the proceedings and whether they agree with the costs position as set out in the petition. There are sometimes difficulties with respondents returning these documents, which can be resolved by evidence of the respondent receiving the documentation, personal service or an application to the court for an alternative method of service.

The petitioner then applies for decree nisi. The application is referred to a judge who considers whether the legal criteria for a divorce has been met. A date for “pronouncement” of the decree nisi is made. Decree nisi sets out that the criteria is met and that a decree absolute can be applied for after 6 weeks and one day have passed. Decree nisi must be pronounced before the court is able to approve any financial consent order you may have agreed.

Then the application for decree absolute is made and processed. This does not require attendance at court.

If you have a question that is not covered above please contact a member of the Family team.

Edie Smith was a contributor to this blog.