Question 1

What is Family Law?

Accepted Answer

This is the law relating to family matters encompassing divorce, separation, financial settlements, domestic abuse, and all matters relating to children including custody, contact arrangements, abduction, parental responsibility, guardianship, child abuse and neglect.

Question 2

How much does a family solicitor cost UK?

Accepted Answer

Solicitors generally charge for their work on a time basis, so costs will tend to depend on how much time it takes to do work. Usually, charges are based on an amount per hour.  Fees therefore will vary. If the divorce is contested then fees will increase dramatically. Dealing with the financial settlement is considered separately and so you will need to budget separately for these.

Question 3

Does there have to be a court order regarding the children?

Accepted Answer

It is important to try to agree arrangements amicably for the children if you separate from their other parent. There is no need for a court to make an order in relation to the children if you are able to agree the arrangements between you.  In fact, the court has a principle of ‘non-intervention’ in respect of the arrangements for the children and they will not make an order unless they feel that it is in the children’s interest for them to do so.   The court will not get involved at all usually unless one parent makes an application to the court for a specific order to be made to resolve the arrangements for the children.

Question 4

What are the normal arrangements for contact?

Accepted Answer

There is no one right answer as to what contact arrangements should be on separation.  Much will depend on the working arrangements of the parties, the ages of the children, the children’s school and other commitments and the location of the parent’s homes.    Generally speaking the older the child is the more input they should have into the arrangements.  The contact that the child has with their parents should be regarded as a priority to other commitments.  The most common arrangements for contact often focus on the children spending alternate weekends with each parent, sometimes supplemented with additional mid-week contact in the intervening period.  This gives both parents the opportunity to spend quality time with the children but also to have some independent time.   Parents may also wish to consider what arrangements they wish to put in place for holidays, Christmas and special days such as birthdays, Mother’s day and Father’s day.

Question 5

What happens if we cannot reach an agreement?

Accepted Answer

If you are unable to reach an agreement in relation to the arrangements regarding your child on separation either parent may make an application to the court for the court to determine issues such as with whom the child should live, how much time they spend with the other parent and specific issues such as what school the child should go to, what religion they should be raised in and if consent to medical treatment should be granted.  The judge or magistrates will hear what the parties have to say and will often instruct a CAFCASS officer to speak to the children concerned to ascertain their wishes and feelings and to consider any welfare issues.  The CAFCASS officer will also speak to the parties and make recommendations to the court in a report.   The court will encourage the parties to continue to try to resolve matters by agreement throughout the court process but if this is not possible the judge or magistrates will make a decision on the issue in dispute and make a court order to confirm this.

Question 6

If my partner and I separate, does there need to be a formal agreement regarding our children?

Accepted Answer

You do not need to have a formal agreement regarding the arrangements for the children when you separate although it is a good idea to agree matters such as where they will live, how much time they will spend with the other parent and what child maintenance will be paid to support the children.   Some couples do find it is helpful to keep a written record of exactly what is agreed however so that this can be referred to by both parties.

Question 7

What if the marital home is not in my name?

Accepted Answer

If you are married, you will need to register what is known as your “home rights” in the property which in turn will give you rights of occupation to remain living there pending a divorce and financial settlement.   If you are not married, so in a cohabiting relationship with the legal owner, you do not have any rights to the property unless you have children together. In that case, you may be able to issue court proceedings to enable you and the children to remain in the property, or have it transferred into your name, until the children attain the age of eighteen years or complete their full-time secondary education. Thereafter, the property will revert back to your ex-partner and you will have to vacate it.   However, if you have made financial contributions to the property even if it is not in your name, then you may have what is known as a “beneficial interest” in the property.  When the property is sold you will get a respective share of the net proceeds. It is always sensible to properly record your contribution in a document called a “declaration of trust”.

Question 8

How much maintenance is a former spouse entitled to?

Accepted Answer

Spousal maintenance is when it is legally ruled that financial support must be provided by one spouse to another on the breakdown of their marriage. It is different to child maintenance, and it cannot be sought by unmarried couples. There is no set formula for the calculation of spousal maintenance.  Instead, there are several factors to consider to determine how much and for how long spousal maintenance should be paid:  Length of marriage Whether each party is working The age of the parties Who is looking after any children of the marriage Whether both parties can manage financially without spousal maintenance.  Generally, if you conclude that there is a shortfall between what the lower-earning spouse needs and their current income, which the higher-earning spouse can reasonably afford to meet, then you may decide to agree spousal maintenance on this basis, at least in the short term. However, if the lower-earning spouse can cover the shortfall themselves by increasing their income and/or reducing their outgoings in the immediate future, you may decide that spousal maintenance is not required.  If the lower-earning spouse is able to increase their income and/or reduce their outgoings in the future but needs a period of time to make appropriate financial adjustments, you may wish to limit the length of time (term of months or years) of spousal maintenance and/or reduce the amount paid in stages.

Question 9

How can I protect my maintenance payments in case my former spouse dies?

Accepted Answer

The most obvious way would be for there to be provision made in your former spouse’s Will.   However, upon divorce it is unlikely that your former spouse will have made this provision for you. Also, a Will can be changed without your knowledge so relying on a Will is not ideal. You can take out life assurance on your ex-spouse’s life, normally in the form of a Family Income Benefit policy, which would protect your maintenance on death.  There are also critical illness and life insurance policies on the paying spouse’s life which may be available, as well as specific maintenance protection plans.

Question 10

Is there a time limit for financial settlement after divorce?

Accepted Answer

In Family Law, there is no time limit to bring a claim for financial settlement after divorce, provided you have not remarried. Consequently, this could leave a party exposed to a financial claim being brought against them many years after the divorce proceedings have been completed.  It is possible to terminate any financial claims by submitting an agreement to the Court for a global financial settlement which can include a clean break clause dismissing all financial claims.

Question 11

How is money divided in a divorce?

Accepted Answer

Unlike child maintenance, there is no set formula for deciding what amounts to a fair financial settlement. The court will consider all of the circumstances of the case, taking into account a set of statutory criteria under section 25 of the Matrimonial Causes Act 1973. The court calculates and then distributes the parties’ assets between them to achieve a fair outcome.  The courts’ first consideration is given to the welfare of any children of the family under the age of 18.  In summary the section 25 factors are:  The capital and income resources available to the parties, either existing or reasonably foreseeable. Details of the financial needs of the parties, taking into account:  their standard of living; their ages and the length of the marriage; and any disabilities.  The court also considers the following additional factors:  the respective contributions of each party to the marriage; the conduct of each party (although only in exceptional cases); and any benefit either party will lose as a result of the divorce (such as a spouse’s pension).   However, each case is looked at individually and on its own facts.

Question 12

What is considered a fair divorce settlement?

Accepted Answer

The Court has a very wide discretion when deciding financial settlement cases, to consider the criteria under section 25 of the Matrimonial Causes Act 1973 and to decide matters based on what it considers to be fair.  Whilst there is a starting point that assets should be divided equally, this can be departed from on the basis of need e.g. a party would not be able to rehouse unless they receive more than 50% of the assets.   They encourage both parties to become financially independent as soon as possible, but sometimes this is not possible and spousal maintenance has to be paid into the future.

Question 13

Do the grounds for divorce affect financial settlement?

Accepted Answer

The grounds used to base a divorce petition will not normally have any effect on the financial settlement.  In very rare and exceptional cases conduct can be taken into account, but it has to be exceptional and there is a very high bar to cross for it to be relevant.

Question 14

Do I have to blame my spouse for the breakdown of the marriage?

Accepted Answer

Since April 2022, the divorce law has changed to a no-fault divorce. This means that you do not need to blame your spouse for the breakdown of the marriage and you can simply state that the marriage has broken down irretrievably. This aims to reduce the conflict and allegations of blame and allows the parties to try and resolve matters amicably.

Question 15

What are the grounds for divorce?

Accepted Answer

In family law in the UK, currently there is only one ground for divorce which is that your marriage has broken down irretrievably, or in other words your marriage has broken down permanently and cannot be saved.  You can only get a divorce if you’ve been married for at least one year. To prove that your marriage has broken down irretrievably, you must establish one of five facts: adultery, unreasonable behaviour, desertion, living apart for at least two years and living apart for at least five years.  However, “no fault divorce” will come into effect on 6th April 2022 which means that you will be able to get divorced without one person needing to lay blame on the other.

Question 16

Do I have to go to court?

Accepted Answer

In a large majority of cases, it is unlikely that you would need to attend court.   If you are getting a divorce, then there is no need to attend court as the whole process is dealt with using the online portal.  Parties will only need to attend court if a financial settlement as a result of the divorce cannot be agreed.  If the dispute is about the children, again, if parties can agree matters then court is not necessary.  It is only if there is any dispute about the arrangements for the children would there be any need to physically attend court.  The family court encourages parties to resolve disputes by attending Mediation – another way of resolving a disagreement between parties – with the assistance of a Mediator, who is a third party who will not take sides.  A Mediator can help you reach an agreement about issues with money, property or children. You can try Mediation before going to a solicitor. However, if an agreement is not possible within Mediation or even with the assistance of a solicitor, then as a last resort court is going to be unavoidable.  Taking legal advice at an early stage can often help to avoid contested proceedings.

Question 17

How long does a divorce take?

Accepted Answer

Generally 4 to 6 months, if you and your spouse can agree the reasons for the divorce and there is no financial settlement or issues with any children to agree.  If there are, then the process could take longer especially if matters end up in court.

Question 18

What is the divorce process?

Accepted Answer

You and/or your spouse could apply to the court for a divorce using either the online divorce portal or by completing the Form D8 and submitting this to the court by post. If you submit the application by post, you will need to ensure that you send the court 3 copies of the divorce application.  Under the new divorce law, you could make a sole or a joint application for the divorce. This would depend upon your personal circumstances.  In order to complete the divorce application (whether online or by paper application), you will need the original marriage certificate. If you do not have a copy, you will need to obtain a copy from the register office.  There is also a court fee of £593 payable on the submission of the application. There is a 20-week reflection period between the start of proceedings (when the court issues the application) and when the Applicant may apply for a conditional order. During this period, the Respondent will need to complete an acknowledgement of service. Once the 20-week reflection period of over, an Applicant can apply for the conditional order.  Once you have submitted the application, the court will consider your application and if they are satisfied, they will provide you with a date on which the conditional order will be pronounced. Once the conditional order has been pronounced, you are free to apply for the final order of divorce after 6 weeks.

Question 19

What effect will it have if I move out of the family home before we are divorced?

Accepted Answer

If you jointly own the family home with your spouse or partner, you will not lose that legal interest if you voluntarily move out of the property.  However, by moving out of the property you may lose control of the remaining household contents and you will need to ensure appropriate arrangements are in place to ensure the mortgage continues to be paid.

Question 20

Are there any restrictions on getting divorced?

Accepted Answer

You have to be married for at least one year before you can apply for a divorce and either you or your spouse should be a resident of England and Wales or domiciled here.

Question 21

Can I still get a divorce here if I was married in another country?

Accepted Answer

Yes, as long as you have a valid marriage certificate and are either a resident of England and Wales or domiciled here.

Question 22

What happens if I apply for a divorce on a sole basis?

Accepted Answer

If you initiate the divorce proceedings, you will be known as the Applicant in divorce proceedings and your spouse will be the Respondent. Both you and your spouse will be provided with the issued divorce application. Your spouse will also need to complete and submit an acknowledgement of service. Once they have completed the acknowledge of service, you will be notified by the court that your spouse has done so. It will then be up to you to apply for the conditional order and final order of divorce when the time comes.

Question 23

What happens if we make a joint application for divorce?

Accepted Answer

If a joint application is initiated, you would both need to agree the divorce application before it is submitted to the court. The person who takes the lead in drafting the divorce application will be known as Applicant 1 and the other person will be Applicant 2. Once the application has been agreed and approved by both of you and submitted to the court, the court will issue the divorce application. Both you and your spouse will be provided with the issued divorce application and both of you would need to complete and submit an acknowledgement of service. You will be notified by the court when you have both completed the form.You would both have to apply for the conditional order and final order of divorce together when the time comes. If you find yourself in a situation where there is a further deterioration of the relationship and are unable to continue with a joint application, one of you could give notice to the other of your intention to change the application from joint to sole. Once the necessary notice period has ended, the party giving notice can apply for the conditional order or final order of divorce on a sole basis.  Please note that the change can only happen at the conditional order or final order stage.

Question 24

How can I make a judicial separation application?

Accepted Answer

A judicial separation application can be made by completing the Form D8S and submitting the application to the court by post. As with the divorce application, you can either apply solely or jointly. There is a court fee of £365 payable on the submission of the application. You will also need to provide three copies of your application.There are only two stages of the separation which is the initial application and the application for a judicial separation order. There is no final order as this would terminate your marriage.

Question 25

What happens if my spouse does not acknowledge the divorce?

Accepted Answer

If your spouse fails to acknowledge the divorce, you will need to prove to the court that your spouse has received the divorce application and is aware of the proceedings. This may be done by way of instructing a process server to personally serve your spouse and obtaining a certificate of service from the process server. If the court are satisfied with the service, you will be able to continue with the divorce.There may be other options available depending on circumstances. It may be best to get advice from one of our solicitors to discuss alternative options.

Question 26

Can my spouse dispute the divorce application?

Accepted Answer

In sole applications, the Respondent can dispute the application in limited circumstances but they cannot dispute that the marriage has broken down irretrievably. The Respondent would only be able to dispute the application on the following grounds:There is a dispute of jurisdiction of the court in England and Wales. For example, where neither of you lives in or has any connection with England and Wales.There is a dispute as to the validity of the marriage or civil partnership. For example, if you did not enter into a legally valid marriage or the marriage has already legally ended in another country.

Question 27

Can I claim my costs for the divorce?

Accepted Answer

Under the new law, an Applicant cannot claim their divorce costs within their application. Although an application can be made to the court asking for your costs to be paid by your spouse, the court will only make an order in very limited circumstances.If you wish to seek your costs, it may be best to agree this in correspondence with your spouse at the earliest opportunity.

Question 28

Can the divorce conclude even if our finances are still been negotiated?

Accepted Answer

Yes, the divorce can be concluded prior to your finances being resolved. However, it is always advisable that you do not apply for the final order of divorce until your finances have been resolved. If you apply for a final order of divorce without a financial agreement in place, any benefits you may be entitled to as a spouse including those under pension policies and rights of occupation will automatically cease.

Question 29

If we have reached a financial agreement, can we submit this to the court?

Accepted Answer

If you and your spouse have reached an agreement in respect of your finances, you would be able to submit the financial consent order to the court for approval once you have reached the conditional order stage of the divorce. If you have not reached this stage in the divorce, you will have to wait for the conditional order to be pronounced before you are able to submit the consent order to the court.

Question 30

Do we need to resolve arrangements for our children before we are divorced?

Accepted Answer

No, divorce proceedings are separate from any arrangements for the children and can be resolved at any time. Although it would be best if any arrangements for the children are agreed as soon as possible.  If arrangements cannot be agreed, an application may need to be made to the court.

Question 31

What is a prenuptial agreement?

Accepted Answer

A prenuptial agreement is a document which sets out, between parties who intend to marry, what will happen to their financial resources both during the marriage and in the event that the marriage fails.  It is also possible to enter into a post nuptial agreement after the marriage takes place addressing the same issues.

Question 32

Are Prenuptial agreements legally binding?

Accepted Answer

Prenuptial agreements are not yet legally binding in England and Wales, however the courts have decided that they will give significant weight to them and look to uphold prenuptial agreements provided the agreement is freely entered into by each party, with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to the agreement. If one parties needs are not met in being able to be suitably housed, the court is not likely to uphold an agreement. The agreement must also comply with certain conditions set out by the Law Commission. Those conditions are: The agreement must be contractually valid, entered into freely and willingly by both parties. The agreement must be entered into by a formal deed which sets out that the parties understand that it is enforceable and may be upheld by the courts if they are asked to make a financial order.  The agreement must be finalised and signed by both parties at least 28 days prior to the marriage.  Both parties must have given and received all material information about their respective financial situation to one another prior to the agreement being signed.  Both parties must have legal advice on the agreement at the time the agreement was drawn up. The agreement terms must not adversely affect the reasonable needs of any children.

Question 33

Why should I consider a prenuptial agreement?

Accepted Answer

You should consider entering into a prenuptial agreement if you want to regulate the outcome financially of your marriage as it will govern ownership and responsibility of financial resources both during your marriage and after it’s breakdown.  They aim to offer certainty of outcome.  It is often most helpful in circumstances where parties have already accrued financial resources they wish to protect, perhaps for children from a prior relationship, or due to family inheritances.  It can protect property or savings or a business from claims from the other party.  It could also protect future earnings and pensions from claims.

Question 34

What can a prenuptial agreement contain?

Accepted Answer

A prenuptial agreement can be tailored to your individual circumstances. A schedule of each party’s assets, liabilities and income resources should be drawn up and exchanged. It can then be annexed to the agreement as a record of the parties’ financial positions at the time the agreement was drawn up. The agreement can then set out what is to happen to those assets and liabilities and what will happen to any which are acquired during the course of the marriage. This will be the subject of agreement between the parties and negotiation where necessary.The agreement will usually deal with all sorts of assets including properties, savings and investments, inheritances, pensions and business interests. It can also deal with liabilities and what payments will be made by each party from their income.

Question 35

Do I need a solicitor when I enter into a prenuptial agreement?

Accepted Answer

In order to stand the best chance of a prenuptial agreement being upheld by the court it must be drawn up in clear legal terms. Both parties must seek legal advice on the agreement and the court must be assured that both parties understood fully the agreement and entered into it willingly and after having given and received full material disclosure of each party’s financial circumstances. Instructing a solicitor to assist you therefore is likely to strengthen the chances that the agreement will be upheld. It is important the parties understand the claims\rights they are giving up and\or acquiring under the agreement.

Question 36

Are there any cases where the court has upheld a prenuptial agreement?

Accepted Answer

There have been a number of cases reported in which the courts have upheld a prenuptial agreement, the most widely reported of which was Granatino v Radmacher in 2010.

Question 37

How can Tollers help with my prenuptial agreement?

Accepted Answer

We would be delighted to assist you to implement an agreement already reached with your partner or to assist you to consider and negotiate the issues relevant for your circumstances. We can assist you in producing your schedule of assets and considering the implications of any proposals when we receive the schedule of assets from your partner. We can then draft an agreement for you both to consider and approve and provide you with advice on the implications of the terms.

Question 38

Can both parties use the same solicitor when drafting a prenuptial agreement?

Accepted Answer

As both parties need independent legal advice on the implications of the agreement each party should appoint their own solicitor to advise on the agreement.

Question 39

What other legal matters should I think about after getting married?

Accepted Answer

A prenuptial agreement should be reviewed regularly on any significant change in your circumstances once the marriage has taken place to ensure that the terms are still appropriate.  Whilst you cannot amend the prenuptial agreement you can enter into a new post nuptial agreement which reflects the changing circumstances you wish to address.

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