Separation & Divorce FAQ

Yes, and the only way you can get the lover out is to force your partner to sell the property.

Find out more about separation and divorce.

If you've left of your own free will, the courts may still expect you to pay your share of the mortgage, taxes and repairs, etc. but not the bills involved for actually living in it.

Find out more about separation and divorce.

If your name is not on the tenancy agreement, then normally, yes.

Find out about tenancy rights and about divorce.

Yes, by applying to the court for an occupation order (in England & Wales) or an exclusion order (in Scotland). You must be able to prove that your partner has been violent or that you have suffered psychological harm.

Find out more about your rights during separation and divorce.

Yes. The Child Support Agency assesses all fathers in the same way.

Find out more about separation and divorce.

Any money put into a joint account is treated as jointly owned so either of you can remove it at any time, even if one of you put in more money than the other.

Yes. The bank or credit card company can chase both of either of you for the whole debt.

This will depend on the circumstances so you should speak to a specialist solicitor straight away.

Find out more about separation and divorce.

Discuss the problem with your solicitor first. If it's a problem relating to the service you've received, discuss the problem with either the solicitor directly or, if that's awkward, the partner in their firm responsible for complaints. All solicitor firms must have their own complaints procedures. If the solicitor is a sole practitioner, then they may have an arrangement with another local firm or with the local Law Society to deal with complaints.

Now put your complaint in writing. Any complaint should eventually be recorded in writing. Your solicitor will then have a record of the details. You should keep a copy of your letter.

Next refer the case to the Law Society's Legal Complaint Service. You should contact the Law Society if: 

1. you haven't received a detailed reply to your initial complaint from your solicitor within a reasonable time, say 28 days; 
2. you haven't been able to sort out your complaint with your solicitor; and 
3. your complaint is about a solicitor's conduct. 

It's important that you contact the LCS within six months of the matter you are complaining about. If you leave it any longer, it may decide not to investigate your complaint.

Make your complaint heard: find out how...

Solicitor jargon 'no win, no fee' means that solicitors are paid nothing for their work if they lose, but it also covers agreements whereby solicitors can charge more if they're successful. Put simply, there are two types of 'no win, no fee':

1. Conditional fee agreements: this is the only type of 'No win, no fee' that is allowed for the vast majority of cases (with the exception of family and crime). The solicitor is allowed to charge a sum to reward his risk-taking in the event of a successful result which can be as much as double his fees. If you win, the losing side will (generally speaking) pick up this cost.
2. Contingency arrangements: the solicitor takes as his fee a straight percentage of the award (by contrast with a Conditional fee agreement where the lawyer charges a percentage increase on his or her fees). It's limited to cases which don't involve court proceedings, and is especially popular in employment tribunals and Motor Insurers' Bureau claims.

Find out how you can access Affordable Law.

There are various methods of funding a legal case used by solicitors:

• Charging by the hour: This is the most common method of charging. Hourly rates vary from high street firms where you can expect to pay somewhere between £80 to £120 an hour for advice on private and commercial work, all the way through to £350 an hour for a senior partner in a City firm for extremely expert advice on complex points of commercial law.
• Fixed fees: This form of payment has the obvious appeal of limiting your liability for legal costs and, after the hourly rate, it's the next most common way of charging. The obvious downside is that if your case concludes quickly, then you will end up paying more than you may have on the hourly rate basis.
• No win, no fee: 'No win, no fee' is a deceptively simple expression. On one level - and as the name implies - solicitors are paid nothing for their work if they lose, but it also covers agreements whereby solicitors can charge more if they are successful.
• Legal Aid/the Community Legal Service: To be eligible for Legal Aid, you have to show that you cannot pay for your case (i.e. that you are financially eligible) and that you have a sufficiently strong case that you are likely to win. Even if you're working, own your home and have savings, you may still qualify. However, you may well have to pay a contribution towards the cost of taking your case to court.

Couples in Scotland will usually legally separate by means of a separation agreement. This is often entered into when the couple initially separate, to regulate their financial affairs and the care arrangements for their children. It's common for the couple to come to an agreement regarding the division of their assets and for payment of financial support for the spouse and children and indeed for the division of assets to take place at, or shortly after, the time they separate. Thereafter, if the parties do come to divorce, the divorce action can proceed on an uncontested basis.

Such separation agreements are normally registered in the Books of Council and Session located in Edinburgh; this can be done simply by writing a letter to the Books of Council and Session with a copy of the signed agreement and asking for it to be registered. There is a fee payable depending on how many pages the agreement extends to and how many copies are required; once registered, the agreement has the same effect as a divorce court decree and can be enforced.

There is only limited scope for changing the terms of a registered agreement. For example, it's possible to vary the arrangements made for the care of the children and to vary the arrangements made for the payment of maintenance for a spouse and/or children if there is a change of circumstances. Otherwise the provisions of the separation agreement can only be challenged if it can be shown that they were not fair and reasonable at the time they were entered into.

Find out more about divorce and DIY divorce.

In England and Wales, if the financial proceedings are contested, then at each interim hearing and at the final hearing the judge may make an order regarding the costs of the applications that he or she has just dealt with. Usually, the party who lost will be ordered to pay the winning party's costs. The problem for the judge is often how to assess who 'lost' and who 'won', particularly at a final hearing.

Find out more about divorce and DIY divorce.

The divorce court has the power to divide pensions by ordering a certain percentage of the value of a husband's pension to be transferred into a new pension plan for his wife. This is known as a 'pension sharing order'. Alternatively, a husband and wife might agree that the husband retains his pension but makes periodical payments to his wife from his pension income when he begins to receive it.

The question of pensions and a possible division of them becomes far more relevant if the marriage is of reasonable duration, the parties are over the age of 40 or the pensions are of significant value.

Find out more about divorce and DIY divorce.

You can appeal against an interim decision or divorce court order made by a District Judge in England and Wales or Sheriff in Scotland concerning your children or any financial matters.

However, an appeal of an interim order is a serious matter which shouldn't be undertaken frivolously and it's also unlikely to be successful. District Judges and Sheriffs enjoy enormous discretion and unless there's an error in law or an error in fact, the appeal divorce courts are unlikely to interfere with their judgment.

Moreover, an appeal can be quite expensive. Since the loser normally pays the legal fees for both sides, an appeal is something that must be considered with caution.

Find out more about divorce and DIY divorce.

The divorce court can make the following financial orders:

Maintenance orders
These order that one spouse should make maintenance, or periodical payments (usually from the husband to the wife). Payments are normally ordered on a weekly or monthly basis. They can be limited to a set period.

Lump sum orders
These order one spouse to make a payment of a lump sum of money to the other. This sum can be of any amount, depending upon the assets of the parties in any particular case. A lump sum can be ordered in addition to maintenance payments, or it can be in final settlement of the financial obligations of the payer.

Transfers of property
The divorce court can order a husband or wife to transfer any property which belongs to that person to the other spouse. This order is often made when the property to be transferred is the spouse's interest in the former matrimonial home. These orders can be made in relation to all forms of property, including tenancies and company shares, for example.

Find out more about divorce and DIY divorce.

When a marriage has broken down the divorce court has the power to make any orders about finances or property which seem to the divorce court to be just, including maintenance orders. The divorce court will look at every bit of property or capital owned by the husband or wife.

Each spouse must complete a document which gives a comprehensive account of his or her financial position. The divorce court then looks at the facts of the particular marriage to help it decide what orders it can make which will be fair to everyone. When it does so, it has to keep in mind that if there are any children of the marriage, the interests of those children will be the most important consideration. This often means that the parent with children living with him or her will be more likely to keep the home, at least until the children have all finished their full-time education.

Find out more about divorce and DIY divorce.

When both parents have 'parental responsibility', neither parent can take a child out of England and Wales or Scotland without the permission of the other parent or the leave of the divorce court. Without such permission or leave, that parent will be committing an act of child abduction. If there's a serious risk of kidnap, the port alert scheme can be initiated by the police to watch likely emigration points. Contact the police or a solicitor for further advice.

The jurisdictions of England and Wales and Scotland are signatories to the International Hague Convention on child abduction. This means that the divorce courts undertake to enforce the orders of the signatory countries concerning children and to return abducted children to the country from which they were kidnapped.

Find out more about divorce and DIY divorce.

Fathers often believe that they are at a disadvantage when a divorce court awards custody of children, but parents start off on equal terms.

The divorce court will do everything it can to make a decision in the child's best interests, which means taking all of the circumstances into account.

The divorce court does often find that a baby or a very young child will be more suitably cared for by its mother, but this isn't always true. Many fathers are equally capable of caring for their children from babyhood and some mothers do not provide the best care. Each case will be decided after investigating all the circumstances including the feelings of the child, if he or she is old enough to understand what is going on.

As children grow older, the tilt of the scales in the mother's favour becomes less significant. Another factor which will be taken into account, if it is the case, is that the mother may be available on a full-time basis to care for the children whilst the father has a full-time job. Again, each case depends on its facts. The important thing will always be to discover what will be in the best interests of the child.

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In some recent divorce cases, fathers have been given custody of the children where it is the mother who has been the breadwinner, while the father stayed at home acting as 'househusband'.

These divorce cases don't show any change in the approach of the courts to residence disputes - rather, they are examples of the court deciding what is in the best interests of the children concerned based on the individual situation.

Find out more about divorce and DIY divorce.

This is nothing to be concerned about; the report is simply used to assist the divorce court to reach a decision regarding your child's welfare. The divorce court will direct that the report should deal with a specific question or questions, and any report will normally be limited to those questions. However, it occasionally happens that a report will deal with wider matters concerning the child and the various people involved, rather than limiting itself strictly to the areas indicated by the divorce court.

The purpose of such reports is to assist the divorce court by giving a fuller picture of the child's situation and all the factors relevant to the decision the divorce court is asked to make.

For example, if there is a dispute over where a child should live, the reporter will visit the child in both homes. If there is a dispute over contact, the reporter may decide to observe the child's reactions to the parent who is asking for contact. However, by ordering a report, the divorce court is not handing over the task of making the decision to the person reporting. The decision is for the divorce court alone.

Find out more about divorce and DIY divorce.

It is, of course, best if you and your spouse can agree on matters concerning your children without the divorce court having to make an order.

Once the arrangements have been agreed, the divorce court must be notified. In England and Wales, when you commence divorce proceedings you must complete a Statement of Arrangements for Children (Form D8A), in which you give details of your child care proposals. Your spouse should also sign this form to verify that they agree with these proposals.

If your spouse doesn't sign the form, the divorce court will forward a copy to them, with a request to complete an Acknowledgement of Service (Form D10) and to indicate whether he or she agrees to your proposals concerning the children.

If your spouse disagrees with your proposals, they can submit their own proposals on the Statement of Arrangements and submit it to the divorce court, which will then send you a copy. The judge considers the Statement of Arrangements after you apply for directions for trial.

Find out more about divorce and DIY divorce.

No, the divorce court will only get involved with those children who, because of young age and circumstances, need your care and continued financial support.

Specifically, this includes all children born to you and your spouse (or adopted or treated as natural offspring) who are:

• under 16 years old;
• between 16 and 18 and still at school or university full time
• or when there are exceptional circumstances (e.g. mental or physical disability).

Note that in Scotland, court orders can only be made in respect of children under 16.

Find out more about children and divorce.

In England, Wales and Scotland, there is only one basic ground for divorce - the irretrievable breakdown of the marriage. Irretrievable breakdown is proven by establishing one or more of the following 'facts':

1. Adultery
2. Unreasonable behaviour
3. Desertion (this ground can no longer be used in Scotland)
4. Two-year separation in England and Wales or one-year in Scotland, when the other party consents to a divorce
5. Five-year separation in England and Wales or two-year in Scotland, in which case no consent is needed

Find out more about divorce and the grounds for divorce.

You can find out if your divorce is eligible for Public Funding from a solicitor, the Legal Services Commission or your local Citizens Advice Bureau.

A solicitor has a duty to advise you as to whether you're entitled to Public Funding for your divorce and related matters, such as periodical payments, any issue relating to your children or division of property. While many solicitors do accept Publicly Funded work, many others don't but will nevertheless refer you to solicitors who do.

If you qualify, the Legal Services Commission may pay your solicitor's fees in the form of a loan which may be taken out of the proceeds of the financial settlement that you reach with your spouse.

Find out more about divorce and DIY divorce.

• How long have they been in practice?
• What percentage of their cases are divorce cases?
• Do they belong to Resolution? This is important, as this association is for family lawyers and has a code of conduct that emphasises practicality and a constructive approach, rather than unnecessary and expensive dispute.
• Who within the office will actually handle the case? How much delegation will be involved and to what extent?
• What will be the general approach to the case and how long will it take?
• What approximate outcome might be expected?
• Approximately how much will it cost, what is the hourly rate, and how is the fee to be paid?
• Are you eligible for Public Funding?

Or simply get a quickie divorce with our DIY Divorce Kit.

1. A DIY divorce will save legal fees. These can be considerable. A simple uncontested divorce can cost £1,000 or more and legal fees can become unaffordable in complex cases. Solicitors can charge as much as £150 to £300 an hour for their time, so fees can quickly escalate.
2. A DIY divorce is usually less adversarial. If you and your spouse are already able to communicate constructively, then introducing solicitors may make that communication more difficult.
3. Your DIY divorce case may move faster without a solicitor. Your solicitor may be too busy with other cases, causing you needless delays.

If this sounds like what you are looking for then you are right for a DIY Divorce.

Lawpack's DIY Divorce Kit can help you with a quickie divorce!

The short answer is not necessarily. To find out if you need a solicitor to manage your divorce consider these five questions:

Is your divorce contested?
If you and your spouse agree that you should divorce, your divorce is 'uncontested'. The vast majority of divorces are uncontested. You don't necessarily need a solicitor unless you disagree on other issues, such as the maintenance to be paid or how your property will be divided. If one spouse is unwilling to divorce, the divorce is 'contested' by that spouse. In this case, you'll need a solicitor to work out whether there are grounds for divorce.

Are minor children involved?
Some of the most important issues in divorce involve the welfare of any children under 18 (known as minor children). Because these issues are so important, the court will be concerned that what has been decided is in the best interests of the child. If you have children, you should ask a solicitor to approve the agreements that you and your spouse have made for them. An experienced solicitor can guide you to a settlement that the court will approve for the children.

Can property can be divided easily?
If your divorce involves deciding who, for example, keeps different items of furniture, you should be able to resolve these questions without a solicitor. If you own substantial property, you will want a solicitor to make sure you receive your fair share and that the way your property is divided is tax-effective.

Do you need or expect future support from your spouse?
If you'll be financially dependent on your spouse after the divorce, you may need a solicitor to help you negotiate how much you'll receive and to get this agreement legally protected.

Are there proper grounds for a divorce?
Your rights to a divorce are not automatic. You must show one of 'five facts' which have affected your marriage.

Even if you need a solicitor for financial matters, you could still save yourself money by conducting the divorce yourself, seeking advice from a solicitor only as and when necessary and by seeking to agree on matters with your spouse as much as possible.

If this sounds like you then you are right for a DIY Divorce.
Lawpack’s DIY Divorce Kit can help you with a quickie divorce!