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Separation and Divorce FAQs

Can my ex-partner move his new lover into the family home without my permission?
Yes, and the only way you can get the lover out is to force your partner to sell the property.
During my separation and divorce do I still have to share the costs for running the property even though I've moved out?
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.
I am going through the process of separation and divorce: can my partner kick me out of our rented accommodation now that we've split up?
If your name is not on the tenancy agreement, then normally, yes.
How do I go about getting separated in Scotland?
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.
What are the costs involved in divorce financial proceedings?
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.
Will I get a share of my husband's pension on 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.
What can I do if I'm dissatisfied with an interim divorce court order before my divorce is finalised by decree absolute?
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.
What kind of financial orders can the divorce court make in divorce proceedings?
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.
What are my rights to money and property if my marriage ends?
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.
During my divorce can my spouse take our children out of the country?
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.
In a divorce are mothers always awarded custody of the children?
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.
Is there a new bias in recent divorce cases towards fathers being awarded child custody?
In some 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.
During my divorce the judge has asked for a family reporter to write a report on my child's situation; should I be worried?
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.
Will the divorce court get involved with the welfare of all my children?
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.
What can I do if my spouse doesn’t consent to a divorce on a two-year separation (or one-year separation in Scotland)?
If your spouse doesn’t agree to divorce on the basis of a two-year separation with consent (or one-year separation in Scotland), you may be able to rely on the causes of unreasonable behaviour or five-year separation (two-year separation in Scotland). You don’t need the consent of your spouse for either of these.
What are the advantages of not using a solicitor for a DIY divorce?
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.
Do I need a solicitor to manage my divorce?
If your divorce is straightforward, uncontested (i.e. your spouse is not defending your divorce petition) and you and your spouse are not disputing financial matters or having problems on agreeing on child contact, then you don’t require a solicitor and can do your own DIY divorce.
How long must I be married before I can petition for divorce?
In England & Wales you must be married for at least a year before you can start a divorce petition. In Scotland you or your spouse must have resided in Scotland for the year preceding the divorce, or consider Scotland your principal place of residence.
Can I base my divorce petition on my own unreasonable behaviour or adultery?
No. If you have committed adultery or your own behaviour has been unreasonable, your spouse will have to petition you for divorce.
Does it matter who issues the Divorce Petition?
If you start the divorce process and service the petition on your spouse, then you’re known as ‘the Petitioner’ and your spouse is known as ‘the Respondent’. If you’re the Petitioner, then you choose the grounds for divorce and if you’re accusing your spouse of adultery or unreasonable behaviour, then you may be creating some unpleasantness with your allegations. As the Petitioner, you also can seek an order that makes your spouse pay their legal costs.

To avoid unpleasantness, it’s always wise to establish sensible dialogue with your spouse so that all matters are agreed before you send the divorce petition to the court.
Can I still get a divorce on the grounds of adultery or unreasonable behaviour if my spouse and I have remained living together?
Yes, but you must prove that you now live separate lives within the marital home (i.e. you sleep in separate bedrooms, split the bills, do your own domestic chores and eat and socialize separately).
If I want to rely on my spouse’s adultery after we have separated, will it still count?
Yes. Sexual intercourse with a third party will continue to constitute adultery while you remain married, even after you have separated.
Do I need to get my spouse’s consent if I’m initiating the divorce on the grounds of separation with consent?
No you don’t. Your spouse will be given the opportunity to consent when he/she is served the divorce papers.
If I’ve been separated for two years, am I automatically entitled to a divorce?
No, you would need your spouse’s consent. But if you reside in Scotland, you can divorce automatically as no consent is needed.
Can I get divorced if I am living abroad?
Yes, you can still get divorced in England and Wales or Scotland, providing that your spouse is habitually resident in either jurisdiction. The rules of jurisdiction for divorce can be complicated.
What is contested divorce?
A contested divorce is when one party doesn’t accept what is said about them in the divorce papers.
How long does an uncontested divorce take?
From lodging the divorce petition with the court until you receive your decree absolute, an uncontested divorce takes approximately four to five months. Unlike a contested divorce, an uncontested divorce is quick, cost-effective and a peaceful way of divorcing.
What can I do if I don’t know where my spouse currently lives?
If you don’t have your spouse’s current address, you should make every effort to trace them. You can either ask family and friends or engage the services of a tracing agent.
What is an Acknowledgment of Service?
The Acknowledgement of Service is the divorce form used in England & Wales which is forwarded to your spouse (known as ‘the Respondent’) by the County Court when the divorce petition is served or issued.

Your spouse then has a period of 14 days to respond to your divorce petition by completing this divorce form. The Acknowledgement of Service will then advise the court whether your spouse consents to the divorce decree being granted.

In Scotland, your spouse would use a Consent Form or Form F26 (known as a ‘Notice of Intention to Defend’) when responding to a Divorce Writ.
What happens if my spouse doesn’t return the Acknowledgment of Service to the divorce court?
If your spouse doesn’t return the Acknowledgement of Service to the divorce court, you must ask the Court Bailiff to serve your spouse personally with the divorce papers. You need to ask the court for form D89. A fee is payable to make this application. Alternatively, you can instruct a Process Server.

If you need help serving a divorce petition on your spouse, you can call Divorce Online and they’ll be happy to assist.
What happens if my spouse doesn’t respond?
If your spouse isn’t known at the address you petitioned them at, then you will need to try and trace them. If your spouse is being obstructive, then you need to instruct a private agent or court bailiff to serve the divorce petition.
Do I need my marriage certificate to get divorced?
Yes, you must provide your original marriage certificate when you first start the divorce process.
What can I do if I can’t find my original marriage certificate?
You will need a replacement certified copy of your marriage certificate. Divorce Online can obtain one for you for the one-off fee or you can obtain a certified copy from the Certificate Services Section of the General Registers Office (www.gro.gov.uk) in England & Wales or the General Register Office in Edinburgh, if you’re divorcing in Scotland.
Can we get divorced in England if we were married abroad?
What happens if my marriage certificate is in a foreign language?
If this is the case, you will need to get your marriage certificate translated by a professional translator and send the translation to the divorce court along with your original marriage certificate.
Can I get divorced if my spouse lives abroad?
Yes, you can still get divorced here providing that you are habitually resident and have been living here for at least one year.

The rules of jurisdiction for divorce can be complicated.
Do I have to use my local County Court or can I choose one that is more convenient to me?
In England & Wales, you can choose any County Court to start your divorce proceedings. In Scotland, the application for divorce should be lodged at the Sheriff court nearest to where you live, although it can also be lodged at the Sheriff court nearest to your spouse’s place of residence.
Do all divorces have to go through divorce courts and do I have to be present in court?
Yes, all divorce petitions, as well as all applications for a decree nisi and decree absolute, must be sent to the divorce court. If you’re divorce is uncontested, then you don’t need to be present at court. But if your divorce is contested, you will have to attend court and in some cases both you and your spouse may have to attend.
Do we need to agree on all financial matters before starting the divorce process?
You don’t need to, but it’s advisable to do so. If you ignore the financial issues and later remarry, you may lose the right to have the matrimonial financial affairs reviewed by the court. It’s wise to get an agreement on finances and, if appropriate, obtain a 'clean break' Consent Order (not valid in Scotland).

If you and your spouse can’t agree on the division of assets, then mediation may help.
What grounds for divorce can I use?
There is only one basic ground for divorce: the irretrievable breakdown of the marriage. But you need to prove irretrievable breakdown by basing your divorce petition on one of the following five causes.

1. Adultery

2. Unreasonable behaviour

3. Desertion (this ground cannot 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

Further information can be found in our article 'What are the grounds for divorce?'.
What is a ‘Clean Break’ Financial Consent Order?
By getting a ‘Clean Break’ Consent Order in writing, you and your ex-spouse can agree on your financial arrangements and make it legally binding so that neither party can go back to court to ask for more money or assets after you’ve got divorced.

There is always a risk that either you or your spouse can make further claims after the divorce if the court doesn’t make a financial order. So even if you have already divided your assets or have very little assets, it makes sense to make sure that no further claims can be made in the future.

Clean breaks can be used where one spouse is happy to accept a lump-sum payment, instead of extended maintenance payments. This lump sum will be enough to produce the appropriate level of income for either the rest of the receiving party’s expected lifespan or a fixed term of years, depending on the circumstances.

A clean break arrangement is most appropriate for young couples with no dependent children after a relatively short marriage. It’s sometimes less appropriate where there are young children.

Note that Clean Break Consent Orders are not valid in Scotland.

What Financial Order/Settlement will I get on divorce?
Every divorce case is different, so this will depend on the circumstances of your case. It’s always necessary to get expert legal advice regarding your financial issues when getting divorced.
Do we have to agree on all arrangements for the children before divorce proceedings?
As with the financial aspects of divorce, you don’t have to be in total agreement regarding the care of your children but it’s a very good idea to do so. When getting divorced you can apply for orders relating to the finances for the children and orders relating to residence and contact, but the divorce court will be reluctant to grant such orders unless it’s absolutely necessary. You will have to prove to the divorce court why it’s impossible for you and your spouse to agree.
What other agencies (e.g. social services, custody agencies) may be involved in my divorce?
If you’re going through an uncontested divorce, no other agencies will be involved. If children are involved, you may need to contact the Child Support Agency to confirm that the financial responsibilities for the children are met.
Where will the children live?
Married parents both have parental responsibility for any children, so they both have equal rights. This is regardless of where the children live, and with whom. If you cannot agree living arrangements for your children between you and your spouse, then one of you may need to apply to the court during the divorce proceedings for a Residence Order, as the court will have to decide on the issue. The court might also make a Contact Order which states how often the non-resident parent should see the children.
I have been granted a decree nisi. When can I apply for my decree absolute?
You can apply for a decree absolute six weeks and one day from the date your decree nisi was granted. For example, if your decree nisi was issued on 1 July 2020, you can apply for your decree absolute on 13 August 2020.
Must I apply for the decree absolute or can my spouse (the Respondent) apply?
The Respondent can apply for the decree absolute three months after it has been granted, as long as you and your spouse haven’t reconciled.
What are the court fees in Scotland?
If you’re getting a divorce under the 'Simplified Divorce Procedure, then the court fee is £128. Under the 'Ordinary Divorce Procedure' the current fee for lodging an action of divorce is £159. Both fees are subject to periodic change.
How can I find out if I’m eligible for financial help with divorce court fees?
Depending on your financial situation, you may be entitled to apply for a court ‘fee exemption’ if you’re in receipt of certain benefits.

To find out if you’re eligible, contact the staff at your local County Court. They will provide you with a booklet and application form EX160 for court fee exemption. You will have to provide proof to the court that you receive benefits. You can also use form EX160 to apply for ‘fee remission’, if you are under financial hardship.

You won’t be required to pay the court fee in Scotland if you’re receiving Income Support, income-based Jobseeker’s Allowance, full civil Legal Aid or if you are covered under the emergency Legal Aid Scheme. In any of the above cases, a court fee exemption form needs to be completed.
Can I change my child’s surname?
You should not change your child’s surname without your spouse’s written consent or a Court Order.
Is the family home retained if the children are in full-time education?
It is presumed that the parent with children living with them will be more likely to keep the home, at least until the children have all finished their full-time education.

Whilst it is possible for the family home to be sold and the net sale proceeds split when the youngest child attains the age of 18, if the child is still in full time education, then the court is still concerned with their welfare.

If the child remains in full time education ( including vocational qualifications after the age of 18), then it is highly unlikely the court will order a sale as it is hard to see why this would be in their best interests when they are still financially dependant and need accommodation to be provided for them.


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