What to do if your spouse is being unreasonable

Lawpack on March 27, 2020

Not all divorces are amicable. If your spouse acts unreasonably during the divorce, then you may need the powers of the court to protect you. Here’s a checklist of sources of support available to you during your divorce.

1. Protecting you and your children from violence during a divorce

Violent behavior or mental torment during a divorce isn’t unusual. What can you do if your spouse becomes violent or threatening? It’s important to see a solicitor immediately as they can, if necessary, obtain an injunction (called an ‘interdict’ in Scotland) from a judge within hours.If your spouse breaches the injunction and continues to be violent, the judge can hold your spouse in contempt of court, and they may be liable to imprisonment. In addition, you can also obtain what’s known as an occupation order (in Scotland called an ‘exclusion order’) preventing your spouse from entering the matrimonial home. There has to be up-to-date evidence of physical violence or some other serious form of harassment for such on order to be granted.

2. Protecting you and your children from harassment during a divorce

You can also obtain what’s known as a non-molestation injunction (called a ‘non-harassment order’ in Scotland) if your spouse persists in harassing you, telephoning you or visiting the property where you are living. This order prevents your spouse from harassing, assaulting or intimidating you and your children. The penalty for breaching a non-molestation injunction can be imprisonment.

3. Protecting your property during a divorce

When going through a divorce, it’s not uncommon for one or both spouses to conceal or hide their assets so that they cannot be considered by the divorce court. If you know that your spouse owns assets which you believe they are attempting to transfer, conceal or put in trust, you may want the divorce court to freeze them. To assist the divorce court, gather as much information as possible concerning the asset, including its location. For example, it would help to have details of your spouse’s bank account.

What can you do to protect your interest in a matrimonial home which is owned in the sole name of your spouse?

In England and Wales, you can prevent your spouse from selling or mortgaging the property by registering a Notice in the Charges Register against the property by completing Form HR1 – Application for registration of a notice of matrimonial home rights, if your property is registered land. If your property is unregistered land, you must register a Class F Land Charge at the Central Land Charges Registry in Plymouth; contact them on 0844 892 1111 for details. To find out whether the property is registered, contact the Land Registry who will explain the procedure; a small fee is payable.

In Scotland, even if the matrimonial home is in the sole name of your spouse, before they can sell the property they still need to obtain written consent from you if you are the non resident spouse and still have occupancy rights. Occupancy rights are lost if you haven’t been living in the matrimonial home for two years.

If your spouse has other property in their sole name other than the matrimonial home, once divorce proceedings have been raised, an ‘inhibition’ can be obtained to prevent your spouse from selling any property in their name. You will need the assistance of a divorce solicitor to obtain an inhibition, which is a court order preventing the sale of the property.

What can you do if your spouse refuses to sell or leave the matrimonial home or consent to a divorce?

A piece of legislation called the ‘Trusts of Land and Appointment of Trustees Act’ (which doesn’t apply in Scotland) allows the divorce court to order the property to be sold, but such proceedings are often drawn out and complicated in themselves and shouldn’t be considered without the advice of a divorce solicitor.

Changing the locks. You’re not entitled to change the locks even for your own protection, unless you have first obtained an ouster injunction (called an ‘exclusion order’ in Scotland).

4. Protecting your income and financial security during a divorce

If your spouse continues to pay the mortgage or rent and provides for the family’s needs as before, then no court action is necessary. But if the supporting spouse discontinues support, the other spouse can apply to the court for all forms of financial relief once the divorce petition has been lodged; before that, you can apply for maintenance only but this application has to be brought in a family proceedings court (part of the Magistrates’ Court). The court seeks to maintain the financial stability of both spouses. It therefore usually orders the husband to pay temporary income to his wife (maintenance pending suit, or ‘interim aliment’ in Scotland) until long-term arrangements have been resolved.

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Separation agreements explained

Lawpack on March 27, 2020

What is a separation agreement?

A separation agreement is used when a married couple want to separate but haven’t decided on whether a divorce is needed or not.

Terms are outlined that each party agrees to which sets out a variety of topics and duties, such as who pays the mortgage.

Separation agreements can cover a wide variety of topics, such as living arrangements, maintenance, property and finances, as well as arrangements for any children.

When would I use one?

It’s used when a couple is unsure about the future of their marriage. It allows for important issues to be ironed out – leaving both parties free from resorting to going to court.

Additionally, separation agreements for couples who are sure of their upcoming divorce allow for a temporary cessation of hostilities and provides a cooling off period before involving the courts.

Do I need a lawyer to make one?

It is essential to seek legal advice when drawing up one.

Even if you use a solicitor-approved separation agreement template, many terms should be discussed with a solicitor.

While it’s negotiable and flexible it is still a contract and it can become permanent if divorce proceedings go forward.

As such, expert legal advice is absolutely necessary to ensure you have drawn up a fair and legally robust document.

What is a separation agreement template?

It’s a simple way to create a contract that covers almost all the essential ground in transitioning into a smooth separation.

Templates cover the whole gamut of topics, including lump sum payments, transfers of property, pension splitting, maintenance, school fees, bank accounts, and any arrangements needed for children.

The separation agreement template available through Lawpack has been certified by solicitors for use in England and Wales.

Why would I want a separation agreement template?

Separation agreements are a way to ensure that your and the other party’s needs and boundaries are being respected and any violation of the terms can be taken to court as a breach of contract.

However, they need to be carefully drawn up within the conventions of law; otherwise, they may not withstand pressure in a court.

Separation agreement templates are a way of minimising that risk, providing enough guidance to ensure its contract status but enough flexibility to suit your unique circumstances.

Is the agreement taken into account if I divorce?

If the terms are reasonable, it will likely hold up in front of a judge as a fair settlement and is unlikely to be interfered with.

However, this is all conditional on the document conforming with legal standards, which emphasises the importance of separation agreement templates for ensuring a well written and respected contract.

Is the agreement legally binding?

Separation agreements are considered legally binding contracts, assuming that they are written in accordance to legal standards, either with the help of a lawyer or by using a separation agreement template.

Significant changes in your or your spouse’s financial circumstances may prompt the court to move away from the terms of the agreement.

But it is generally the case that if both parties were aware of the true financial circumstances of the other and received independent legal advice at the time of the agreement, then the court will usually enforce the terms of that agreement.

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What documents do I need to start a divorce?

Lawpack on March 27, 2020

If you want to get divorced, you need to fill in a divorce petition. You can get a divorce petition online from HM Courts & Tribunal Service or in person from any county court. You will have to send to the court the following:

D8 Divorce Petition

In the divorce petition you have to state your full name and address and your spouse’s full name and address. You need to say where and when you got married. You will also have to state the full names, addresses and dates of birth of your children and where they are at school, if over 16. If your spouse has had a child during your marriage which is not a child of yours and is not a child of the family, then you need to give details.

You have to give a reason for the divorce and whether you are going to claim any divorce costs from your spouse. If your divorce is because of your spouse’s adultery and you want to name the person with whom the adultery was committed (although it’s not often done), then you need the name and address of that person.

At the end of the petition is ‘the prayer’, which deals with your financial claims against your spouse. You should leave this wording in full if there is any chance that you might want to make any financial claims, as you cannot change your mind later on.

You must send three copies of the divorce petition to the court. You will need four copies if you are naming someone in a case of adultery.

Original marriage certificate

You have to send the court your original marriage certificate. If you haven’t got it, then you must apply to the Registrar of Births, Deaths and Marriages for a ‘certified copy’. Generally, you apply to the nearest registry office to the one where you got married and the fee is around £8. The court will not accept a photocopy of your marriage certificate, even if it has been certified by a solicitor.

If you weren’t married in England and Wales, then you need to get a certified copy from the country where you were married. If it’s in a foreign language, you will need to file a translation with the marriage certificate when you lodge your divorce petition at court. It’s probably easiest to contact the embassy in England of the country in which you got married as they will have people who can translate the document and have it certified by an independent person.

Court fee or fee exemption form

The current court fee is £550. You can pay the fee by cash, postal order or cheque payable to HMCTS.

You can get help with this fee if you’re on benefits or a low income. You must have an income below a certain maximum per month. In addition, you have to complete Form Ex160 and provide the listed documents

Once you’ve completed these documents then you’re ready to begin your divorce. You have to file all the documents at the court most convenient to where you live as you may have to visit it several times before the divorce is complete.

Help from Lawpack

All the divorce forms you need – and expert guidance on how to use them – can be found in Lawpack’s Separation & DIY Divorce Kit.

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Affidavits: Q & As

Lawpack on March 27, 2020

What is an affidavit?

An affidavit is a written statement from someone which has been sworn to be true. Affidavits, along with witness statements, are documents which are used to prove a person’s statement of evidence in court.

If someone knowingly makes a false affidavit, then they are in contempt of court.

When do I use an affidavit?

The common areas in law when you need to use an affidavit include divorce, property disputes and debt cases, but you could use an affidavit in any type of dispute. You will know that you have to make an affidavit because the court rules will say that you have to.

How do I complete an affidavit?

When you are filling in an affidavit, you should write down your account of the facts/the events as they actually happened. Use plain English and don’t use legal jargon. Also, don’t make personal comments about the other party.

If you are writing the form by hand, it’s advisable to use capitals – to make sure that the judge can read your writing.

Does the affidavit need to be witnessed?

If you are making an affidavit, it usually must be signed in front of a solicitor, or a notary public, or other judicial officer, who has administered the oath.

If you are using a solicitor, they are entitled to charge a fee for swearing the affidavit, but if you swear the documents at court, there is no charge. However, County Courts cannot swear affidavits that are connected to cases brought in the High Court. Where can I get an affidavit form?

You can download an Affidavit Form now from our site and it’s ready to be used immediately. The form can be filled in straight away and it has space for your statement, your personal details, and for your witness’s signature.

An Affidavit Form is also included in our book 301 Legal Forms, Letters and Agreements, which contains 301 legal forms for practically every home and business need.

What to do if your spouse ignores the divorce Petition

Lawpack on March 27, 2020

To begin a divorce you need to draft a divorce Petition which sets out the reasons why you want to get divorced. It’s a good idea to send a draft copy of this document to your spouse before you serve it on them. This could just help to diffuse any unpleasantness, you can agree between you what the Petition is going to say and it gives you a chance to see how cooperative your spouse is likely to be.

The court is responsible for sending the divorce Petition and any other accompanying documents to your spouse. You need to give the court your spouse’s correct address. The court will send you a Notice of Issue of Petition to let you know that the Petition has been sent to your spouse. You will usually get this about a week after you give your Petition to the court. The court posts the petition to your spouse using first-class post. You then just have to wait and see if your spouse responds.

Of course you hope that your spouse responds to the divorce paperwork promptly, but what do you do if you hear nothing from your spouse in response to the divorce Petition? Your spouse has seven days from the day the Petition is received to return the Acknowledgment of Service form. This form allows your spouse to say that they’ve received the Petition and whether they wish to defend the divorce or not. If your spouse lives abroad, then they get more time to respond. If, after this time has passed, you still receive no response from them, then it could be because the Petition wasn’t received for some reason, or that it’s being ignored.

If the court wasn’t able to deliver the Petition, then they will let you know by sending you a Notice of Non-Service of Petition. The court will know that the Petition hasn’t been delivered because the Post Office will return the Petition to the court. You then have to find your spouse’s correct address and let the court know so that it can try to deliver it again.

If it appears that the Petition was delivered but is being ignored, then you have to pick another method of service so that you can prove that the Petition has been received. You have four choices:

  1. Personal service;
  2. Deemed service;
  3. Application for service by an alternative method or at an alternative place; or
  4. Application to dispense with service.

Personal service

It’s possible to ask the court bailiff to serve the divorce paperwork for you. If he agrees then his costs are reasonable, usually about £40. He won’t agree to serve the papers if you’ve got a lawyer acting for you. A Request for Service by the Court Bailiff (Form D89) is available from the court or www.justice.gov.uk/forms. You need to give the court a recent photo of your spouse and a description of them. If the service is successful, then the bailiff will file a Certificate of Service at court. If he can’t serve the papers, then he will file a Certificate of Non-Service. In this case you will have to choose another method of proving service.

If you can’t get the court bailiff to serve the paperwork for you, then you need to instruct a process server to do it. You can find them in the Yellow Pages or on the internet. The process server will need a new copy of the divorce Petition (sealed by the court), Statement of Arrangements for Children (if any), Notice of Proceedings (provided by the court) and a blank Acknowledgment of Service form (provided by the court). The process server will also need a recent photo and description of your spouse. If service is successful, then the process server will file a Certificate of Service confirming that personal service has taken place.

Deemed service

If your spouse has responded in some way, such as saying in an email, letter or post on Facebook that he’s received the Petition, then you can use this information to prove that he’s received the Petition. You can file it at court with an Application Notice (Form D11) and a court fee and ask the court for an order for deemed service.

Application for service by an alternative method or at an alternative place

It may be that you think that there is more chance of your spouse receiving the Petition if it’s served at another address (e.g. their parents’ house). You can apply for an order saying this using Application Form (Form D11). You have to file a court fee and the accompanying documents.

Application to dispense with service

You can use this method if all attempts at service have failed. This application can be made in Form D11. You will also need to complete a statement in Form D13B.

Help from Lawpack

All the divorce forms you need – and expert guidance on how to use them – can be found in Lawpack’s Separation & DIY Divorce Kit.

If you need assistance in completing the forms, then you can use our DIY Divorce Service who will complete them for you. With our Managed Divorce Service they will complete them and also file them at court for you.

If you want more in-depth information from a divorce lawyer about all aspects of divorce law then read our guide, How to Get a Divorce by Punam Denley. Packed with tips and expert advice to ensure that you get through the divorce process smoothly.

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7 steps to filing for divorce in England & Wales

Lawpack on March 27, 2020

 An excerpt from Lawpack’s Separation & DIY Divorce Kit.

Getting a divorce in England & Wales isn’t a complicated procedure. Read our seven simple steps to how you can apply for divorce through the courts.

1. Find your marriage certificate

You need your marriage certificate because you have to file it at court when you start your divorce petition. If you’ve lost your marriage certificate, you can easily obtain a certified copy from the General Register Office.

If you were married outside of England and Wales, you need to get a certified copy of your marriage certificate from the country where you were married.

2. Start your divorce petition in court

You can start your divorce either in the Principal Registry in London, or any divorce County court.

While you can file your divorce petition in any divorce County court, it’s best to choose a court most convenient to where you live because you may need to make several visits to court before the divorce is completed.

To file your divorce petition at court, you will need the following divorce form:

  • Form D8: the Divorce Petition

All the divorce forms you will need – and expert guidance on how to use them – can be found in Lawpack’s Separation & DIY Divorce Kit.

If you need assistance in completing the forms, then you can use our DIY Divorce service who will complete them for you. With our Managed Divorce Service they will complete them and also file them at court for you.

3. Give notice of the divorce petition to your spouse

Once your divorce forms have been completed, your next step is to serve the divorce petition on your spouse.

Sending the divorce petition to your spouse is the responsibility of the court, but it’s your responsibility to provide the court with the
correct address.

You should think about sending a draft petition to your spouse and discussing the contents of the draft petition with them before issuing the petition to prevent any unnecessary unpleasantness.

The court will send you a Notice of Issue of Petition  once the divorce petition has been sent to your spouse. This usually occurs about a week after you file your divorce petition in court.

The court will at the same time post a copy of your divorce petition to your spouse (and any named co-respondent) with an Acknowledgement of Service Form for your spouse to complete.

Your spouse, as Respondent, has seven days from the day the petition was received to return the Acknowledgement of Service.

4. Handling your spouse’s response to the divorce petition

Once your petition is posted to your spouse, one of the following events may occur:

  • The petition may not be responded to, either because it wasn’t delivered or because it was ignoredAssuming the petition hasn’t been returned to the court by the Post Office as undeliverable, you must wait eight days for your spouse to acknowledge receipt.If the petition apparently has been received but your spouse doesn’t acknowledge receipt, then you must arrange for your spouse to be served in such a way that you can prove service.
  • Your spouse acknowledges service and intends to defend against divorceIf your spouse outlines on the Acknowledgement of Service that they intend to contest the divorce, then you must wait 29 days from the day your spouse received the divorce petition and if you don’t receive an answer (or ‘defence to the divorce’) after 29 days, you can ask the court for directions for trial.If you do receive an answer or defence, then you should consult a solicitor to represent you as proceedings from this point onward can be quite technical. You may seek an order for costs
    if the proceedings are defended, to encourage the other side to agree to divorce.
  • Your spouse acknowledges service and doesn’t intend to contest the divorceIf your spouse doesn’t intend to contest the divorce, you can then immediately ask the court to rule whether the reasons stated in your petition are sufficient for the divorce to be granted, and your proposed arrangements for the financial and custodial care of your children are satisfactory.This process is referred to as ‘applying for directions for Decree Nisi’.

5. Applying for Decree Nisi

To apply for Decree Nisi you need to complete the following divorce forms:

  • Form D84: an Application for a Decree Nisi
  • Form D80A through to D80E: a Statement in Support of Divorce/Dissolution/Judicial Separation 

The Forms D80A through D80E coincide with the five facts for divorce. Be sure to use the Form D80 that correlates to the facts used to support the ground for your divorce petition.

6. Getting your Decree Nisi granted

Once your Forms D84 and D80 (and supporting documents) are completed, send them to the court stating that your divorce is undefended.

Your complete file will then be examined by the judge, who will consider whether your documents are satisfactorily completed, you have proper grounds for divorce and the proposed arrangements for your children are in their best interests.

Your Decree Nisi will be sent by the court to you, your spouse (and any co-respondent) shortly after the judge decides that you have satisfied the requirements for divorce. Pronouncement of your Decree Nisi usually takes about two months from the date you first file your Application for a Decree Nisi.

7. Obtaining your Decree Absolute

You’re not divorced until your Decree Absolute is issued.

If you are the petitioner, you can apply for your Decree Absolute six weeks and one day after your Decree Nisi is granted. You cannot apply earlier.

If you are the Respondent, you cannot apply for the Decree Absolute until four-and-a-half months have passed after the pronouncement of the Decree Nisi.

It’s easy to apply for your Decree Absolute, if you are the Petitioner. You simply need to file Form D36: a Notice of Application for Decree Nisi to be made Absolute with the court.

Finally, you will be sent by the court a Decree Absolute which officially ends your marriage.

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