Divorce & Separation

Consider these five questions:

Is the 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.

1. You 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. Your divorce may be less adversarial. If you and your spouse are able to communicate constructively, then introducing solicitors may make that communication more difficult.
3. Your case may move faster without a solicitor. Your solicitor may be too busy with other cases, causing you needless delays.

• seeking referrals from friends or family members who have gone through a divorce;
• using our Find a Lawyer service (provided by the Law Society) or contacting the organisation Resolution (formerly known as The Solicitors Family Law Association);
• asking your family solicitor for a referral if your solicitor does not routinely handle divorce cases;
• asking at your local divorce court for the names of the more active divorce solicitors in your area. Similarly, the Citizens Advice Bureau may be an excellent referral source.

• How long have they been in practice?
• What percentage of their cases are divorce?
• 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?

You can find out if you're 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.

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

No, only 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.

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

Once the arrangements have been agreed, the 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 he or she agrees with these proposals.

If your spouse doesn't sign the form, the court will forward a copy to him or her, 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, he or she can submit his or her own proposals on the Statement of Arrangements and submit it to the court, which will then send you a copy. The judge considers the Statement of Arrangements after you apply for directions for trial.

This is nothing to be concerned about; the report is simply used to assist the court to reach a decision regarding your child's welfare. The 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 court.

The purpose of such reports is to assist the court by giving a fuller picture of the child's situation and all the factors relevant to the decision the 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 court is not handing over the task of making the decision to the person reporting. The decision is for the court alone.

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

The 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 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.

In some recent 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 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.

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 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 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.

When a marriage has broken down the court has the power to make any orders about finances or property which seem to the court to be just, including maintenance orders. The 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 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.

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 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.

You can appeal against an interim decision or 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 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.

The 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.

The Child Support Agency will usually only work out and collect child maintenance if someone applies for it. The Child Support Agency can accept applications from parents with care, non-resident parents, children who are aged 12 or over in Scotland and other people caring for qualifying children if all the people involved live in the UK. Special rules apply if:

• the parent with care is on Income Support or income-based Jobseeker's Allowance;
• there are already maintenance arrangements for the qualifying child; or
• either of the parents live outside the UK.

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 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 agreement can only be challenged if it can be shown that they were not fair and reasonable at the time they were entered into.