Divorce & Financial Settlements

Deciding to divorce will never be an easy one to make and you will undoubtedly have a variety of questions regarding next steps and the impact this will have for your future.

On 6^th April 2022, the legislation regarding divorce changed meaning that couples are no longer required to apportion blame on to one party to seek a divorce.

Previously, the only ground for divorce in England and Wales was the “Irretrievable breakdown of the marriage”, which was evidenced by one of five factors:

1. The Respondent’s Unreasonable Behaviour;
2. The Respondent’s adultery;
3. Two years separation with Consent
4. Five years Separation
5. Desertion.

Under the new legislation, a couple does not need to use unreasonable behaviour or adultery as a reason for their marriage ending. The party who commences the divorce was known as the “Petitioner” and the party who receives the petition is the “Respondent”.  Under the new legislation, the petitioner will now be called the “Applicant”.  You must have been married for at least one year before you are permitted to petition for divorce.

Applying for a divorce under the new legislation will be as follows:

1. An application will be made to the Court either individually by the Applicant (previously Petitioner) or jointly as a couple. Previously, a draft Petition would usually be sent to the Respondent prior to being formally issued at Court. This was to allow the Respondent an opportunity to read the draft Petition so he/she would know what to expect when the papers arrived formally from the Court.  If the Applicant is filing individually under the new legislation, they have 28 days to notify their spouse by email and by post.
2. When the Petition is formally issued at one of the Divorce Units, the Petition will be allocated a case number. The divorce documents will be posted to the Respondent or his/her solicitor by the Court using first class post. Under the new divorce system, a divorce can only be contested on the basis of jurisdiction. It cannot be contested for any other reason. A Respondent is required to complete an Acknowledgement of Service and return the Acknowledgement to the Court. If the Respondent fails to co-operate it may be necessary to arrange personal service of the documents.
3. When the Court seals the Acknowledgement it is returned to the Applicant’s solicitor so the Applicant can apply for Decree Nisi (now to be known as Conditional Order). It is generally not necessary for either party to attend Court. Under the new legislation, there will be a period of six months (20 weeks) “cooling off period” between filing for the divorce and applying for the Conditional Order.
4. After pronouncement of the Conditional Order the Applicant must wait at least six weeks and one day before applying for the Decree Absolute (now to be known as Final Order). It is generally prudent to delay applying for the Final Order until finances have been agreed and a legally binding Consent Order is approved by the Court.

Pronouncement of the Final Order does not sever the financial claims married spouses have against each other for capital, income and pensions. Dismissal of claims can only be achieved by a Consent Order.

You can find out more about the new legislation in our latest article; Divorce in 2022 – what is a no fault divorce.

At Parker Bullen, all our Family Solicitors have experience in acting for Petitioners (now Applicants) and Respondents in all the divorce options.

We offer a free no obligation initial consultation. Taking legal advice at an early stage can often avoid potential pitfalls and can enable you to resolve matters sooner.

Separation Agreement

In cases where a married couple are not able to commence divorce proceedings immediately or where feel divorce is not the most suitable option or you have not been married for at least a year, you can enter into a Separation Agreement.

This is a written agreement which you both sign, setting out your financial settlement. Unlike a Consent Order, a Separation Agreement is not 100% legally binding as it is not considered by the Court and approved in the same way as a Consent Order. Where a Separation Agreement exists the burden of trying to convince a Court to depart from, it rests with the spouse wishing to challenge and override it.

A Separation Agreement will be given weight by a Court if at the time it was entered into by the parties:-

• Both had the opportunity to seek independent legal advice;
• Both had the benefit of financial disclosure concerning the assets in the case;
• There is no allegation of duress to sign the Agreement; and
• The Agreement is fair based on the assets at the time.

A Separation Agreement can record the date of separation upon which you agree and provision can be included for either party to Petition for divorce in due course, after the requisite separation period.

We offer a free no obligation initial consultation. Taking legal advice at an early stage can often avoid pitfalls and can enable you to resolve matters sooner.