How do you start financial proceedings in a divorce?

Lawpack on March 27, 2020

If you want to formalise your financial situation when you split up with your spouse, then you need to make an application to the court to consider and separate your finances.

Before any formal financial proceedings can begin you have to attend a Mediation Information and Assessment Meeting to explore all non-court based ways to find a resolution. If no resolution can be found, then you can start financial proceedings.

Financial proceedings are started separately from divorce proceedings. So, although you may have already started divorce proceedings, you will have to fill in extra paperwork for your financial application.

Here is an outline of the documents that you need to complete:

1. Divorce Form A

The first thing you need to do is fill in a document called Form A. You must include the addresses, Land Registry numbers and mortgage details of each property that you may have a claim against. It’s also sensible to tick all the boxes on Form A even if you don’t intend to make a claim in the end.

The court fee is currently £255. However, this does change, so you should always contact your local court to check the fee. Your completed Form A and the fee is sent to the court which is dealing with the divorce paperwork.

Once you have filed your Form A then the court fixes a hearing date – called a First Appointment – within 12 to 16 weeks. Before the First Appointment there are some forms that have to be sent to the court and your spouse.

2. Divorce Form E

The main form is called Form E. This is a long form that is designed to give a comprehensive view of each spouse’s financial position. You have to include various documents with this form.

These are:

  • Any property valuations from the last six month
  • The most recent mortgage statement
  • The last 12 months’ worth of bank statements
  • The surrender value of your insurance policies
  • The last two years’ worth of business accounts
  • A recent pension valuation
  • Your last three payslips
  • The most recent P60.

This has to be sent to the court at least 35 days before the First Appointment.

At least 14 days before the First Appointment both spouses have to file with the court and give to the other spouse the following:

  • A concise statement of the issues in the case
  • A chronology of events in the marriage
  • A questionnaire with questions for your spouse about the answers they have given in their Form E
  • Form G, which asks you to state if you are ready to skip the First Appointment and consider a more complex hearing called a Financial Dispute Resolution Appointment.

3. Divorce Form H

Just before the First Appointment you have to send Form H to the court outlining an estimate of your legal costs (if any).

The First Appointment is mostly a procedural appointment that will determine how the case will proceed. The court will make orders about what questions your spouse should answer; what valuations are required; and whether any expert reports or other evidence is required.

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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Maintenance orders and payments

Lawpack on March 27, 2020

A significant number of divorce cases don’t clearly ‘end’ with the decree absolute. Even when a couple have agreed on the level of maintenance payments beforehand, one partner may still go back to the divorce court afterwards and ask for a higher level of maintenance payments, or for maintenance payments to continue for a longer time if the other ex-partner’s circumstances change.

Similarly, one partner may attempt to reduce the maintenance payments they make, due to the effects of inflation, retirement, redundancy or a change in their circumstances, such as a job loss, significant drop in income or new and special needs that may arise. Any significant increase or decrease in income by either spouse may cause the divorce court to modify the periodical payments order.

If the payer stops the maintenance payments, this may be for a valid reason, such as job loss. But the payer should never simply stop maintenance payments; instead, they should ask the divorce court to vary the maintenance order immediately.

When maintenance payments stop without being approved by the divorce court, you can register the outstanding periodical payments order at a Magistrates’ Court. This compels your ex- to pay future maintenance payments through the court, who will then enforce any missed maintenance payments or make an application to enforce payment of the arrears through a divorce County Court.

Expert legal advice should be taken as to which application is appropriate since the law in this area can be complex.

Alternatively, the Department for Work and Pensions may take up your case and help enforce the collection of any maintenance payments outstanding.

Do note that even when spouses reach an agreement as to the level of maintenance payments for the children, it will still be possible for either parent to apply to the Child Support Agency (CSA) for an assessment of the child support that the non-resident parent will have to pay from then on.

If the court has made an order for child maintenance which includes a condition that the child maintenance order will fall down if an application is made to the CSA after the child maintenance order is a year old, there is nothing the other spouse can do to prevent it.

In Scotland, if you have either a court decree or separation agreement for maintenance (called periodical allowance), it does not need to be registered at a court. To enforce the court decree or separation agreement, you should instruct a Sheriff Officer (usually done through a solicitor).

There are various powers available to the Sheriff Officer which include arrestment of wages, where the sum outstanding is taken from the non-paying spouse’s wages or salary on a weekly or monthly basis and paid either directly to the dependent spouse.

Or a current maintenance arrestment, where the maintenance payments are deducted at source from the non-paying spouse’s employers and paid directly to the dependent spouse.

All maintenance orders stop automatically when the receiving party remarries.

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Divorce: how can I protect myself financially?

Lawpack on March 27, 2020

Divorce law in England and Wales requires both parties to tell the absolute truth about their financial circumstances and there can be dire consequences if they don’t – usually the offending person is made to pay more in money and property to their ex-spouse, as well as being ordered to pay all of the divorce costs (which can be considerable).

Although it can be possible to protect yourself to a certain extent (financially speaking) upon divorce, you are not allowed to hide assets and income by fibbing about what you have. The divorce court also doesn’t ignore assets and income held by third parties as a matter of convenience (whether at home or abroad). The general rule is that all assets and income, in whatever manner they are held and wherever, are put into the ‘melting pot’ and are seen as available for the divorce court to redistribute between the couple upon divorce.

Divorce law is littered with cases of people trying to hide their assets and income in thousands of ingenious ways. The majority are unsuccessful – even offshore trusts and companies hold no sway with the divorce courts, which take a much more realistic view of ownership than, for instance, HMRC.

Also, a spouse who has tried to protect their money using tax-avoidance schemes (such as a trust) will not necessarily have the divorce court’s backing. To the contrary, the divorce court may not view the money to be an arms-length asset and it will be open to redistribution in the other spouse’s favour. Before embarking upon any exercise designed to put your wealth out of the reach of your spouse, take good legal advice or you may end up paying more than you would have done before you attempted to protect yourself.

So-called ‘simple’ ways of keeping assets from your spouse – such as placing assets in your sole name – also don’t really work as all the assets belonging to both spouses are taken into account by the divorce court. Putting all of the assets into joint names also doesn’t help and it may even make matters worse if the judge takes the view that unless there is evidence to the contrary, assets passed from one spouse to another are considered a gift and stay that way.

The only way you can really protect yourself financially upon divorce is to avoid a big contested financial battle through the lawyers and the courts so that you avoid the big legal fees that such litigation always entails. (Sir Paul will no doubt vouch for the huge divorce costs that can be incurred in such circumstances.)

The best way to avoid such a battle is to reach an agreement between the two of you in the divorce. Forget about the rest: the legal forms, the divorce lawyers, the divorce law and the divorce court.Your divorce is actually about you and your partner. So get talking!

If you can’t do this over the kitchen table, then try mediation or, failing that, collaborative law, where the parties agree in writing to reach a settlement without going to divorce court. Both are tried and tested methods of reaching settlements with the minimum of divorce lawyer and divorce court intervention. They are cheap (relatively) and they avoid the unpleasantness which inevitably accompanies contested divorces.

For more information, contact Resolution, or take a look at Lawpack’s Separation & DIY Divorce Kit which provides hundreds more tips on how you can handle your own quickie divorce and save legal fees and heartache.

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What is a consent order?

Lawpack on March 27, 2020

Unfortunately, marriages break down and spouses are forced to make a decision over who gets what, either in a court of law or mutually without legal intervention.

The problem is, financial disputes can arise and even when things seem to have been settled, exes can return and start to claim assets that the other spouse believes are rightfully theirs, among a vast array of other issues.

That’s why it’s a good idea to invest in a consent order, otherwise known as a clean break order, and protect yourself from losing more than is justifiable in a divorce.

What is a consent order?

A consent order is the legal document by which financial matters are finalised on divorce.

Without one, you may be vulnerable to your partner making a financial claim years later.

The advantages of a consent order

One of the great benefits of a consent order is that it is a cost-effective way of getting your financial divorce settlement in writing, saving loads in legal fees.

What the order ultimately sets out to achieve is a mutual agreement between you and your spouse regarding financial matters, while ensuring the other party cannot come at you with a financial claim in later years.

They are highly reliable documents (99.9% reliable) but there are rare occasions when they can be overturned; for example, if fraud takes place.

What is included in a consent order

1. The home you once shared together

Both parties to the divorce must agree what will become of the former matrimonial home, such as whether it will be sold or left to the spouse in custody of the children (where relevant). You might also consider whether the other spouse will begin or continue to make mortgage payments.

2. Other assets

Next up is to consider what will happen to other relevant assets. These could be shares, endowment insurance policies or a family business, among others. It is necessary to determine how they will be distributed.

3. Personal property and furniture

In a similar vein, it must also be decided what will happen to personal property and furniture, such as who will preserve the fine china. Generally this involves each party taking rightful ownership of their own goods; however, discrepancies can arise over who truly owns what. Typically, a standard clause will suggest each spouse retains goods in their possession at the time the order was drawn up.

4. Pensions

Couples making the break in retirement need to decide if they will pursue pension sharing or perhaps offset their funds against other assets.

5. Maintenance

It must also be decided if one spouse will pay the other maintenance. This is particularly relevant where children are concerned, with most courts ruling the parent with child custody deserving of maintenance. You must also agree when such maintenance payments can be completed; for example, upon death or when the child reaches 17.

6. Child maintenance

It is worth pointing out that while the Child Support Agency (CSA) generally determines child maintenance, courts can also order maintenance and either spouse can apply to the CSA for an assessment.

7. Private health care, insurance and school fees

Other factors that must be taken into consideration are expenses such as insurance premiums, private health care and school fees, especially if one party receives these benefits via their employer.

8. Debts

This clause should outline who will take on the responsibility of any debts of the marriage. If they are joint debts, will the paying party compensate their ex spouse?

9. Pets

Who will takes ownership of the family pet?

10 Termination upon death

The consent order should also outline that neither party will have a claim on the other spouse’s assets after they die.

Consent orders are easy to draw up with Lawpack. Our DIY Consent Order Service can help you to make an order for the fixed price of just £100. 

What do I need to do to get my final divorce papers?

Lawpack on March 27, 2020

If you’ve served your divorce petition and your spouse doesn’t want to defend the divorce, then you can apply for Decree Nisi.

How to apply for Decree Nisi

It’s not hard to apply for Decree Nisi, you simply have to fill in a form called Application for Decree Nisi (Form D84) and a Statement in Support of your Petition (Forms D80A to D80E). There is no court fee.

The Forms D80A to D80E correspond to the five grounds for divorce. You need to use the correct form for your situation. For example, if your divorce petition is for adultery, then you need to use Form D80A. Forms D80B to D80E are as follows:

  • D80B – Unreasonable behaviour
  • D80C – Desertion
  • D80D – Two-year separation
  • D80E – Five-year separation

With Forms D84 and D80 evidence must be provided that:

  1. Your spouse, or any co-respondent has received the divorce petition. If not, then you need an order for deemed service, or an order that service can be dispensed with.
  2. If your petition is based on adultery, then you must have evidence that your spouse admits to the adultery.
  3. If your petition is based on unreasonable behaviour, then you must have evidence that your spouse admits to unreasonable behaviour.
  4. If your petition is based on desertion, then you must have evidence that your spouse admits the desertion.
  5. If your petition is based on two years separation, then you must have evidence that your spouse consents to the divorce.

You’ll find most of the information above in the Acknowledgment of Service, so don’t worry about having to file lots of different pieces of evidence.

Filing the Decree Nisi at court

You then have to send these forms to the court and state that your divorce is undefended.

When the court receives your paperwork, it will consider whether you’ve completed the documents correctly, whether you’ve got sufficient grounds for divorce. You don’t need to turn up to the court to hear the Decree Nisi pronounced, unless you want to.

If the judge finds that your documents are in order, he will send you a Certificate of Entitlement to a Decree Form. It usually takes about two months from the time you first file your application for decree nisi. You’re usually told of the actual date about two weeks in advance.

Decree Absolute

A Decree Nisi is a provisional divorce and needs to be finalised with a Decree Absolute. You’re not finally divorced until you have your Decree Absolute.

If you’re the petitioner, you can apply for Decree Absolute six weeks and one day after you receive your Decree Nisi. If you’re the defendant you have to wait for four and a half months after you receive your Decree Nisi before you can apply for Decree Absolute. As long as the court is happy you will receive your Decree Absolute and finally be divorced.

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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How can you arrange your own divorce?

Lawpack on March 27, 2020

Deciding that your marriage has no future is always tough, so the last thing you will want is for messy and drawn out divorce proceedings to follow.

Not everyone has the funds available to leave a divorce entirely in the hands of a legal team, so doing it yourself can be a good option. The good news is that it’s possible to handle your divorce personally, without the help of legal experts.

Divorce is an option that is open to anyone who has been married for at least a year and has found that their relationship has broken down for good.

3 steps to getting a divorce

  1. You need to file a divorce petition, which is effectively an application to the court for permission to go your separate ways. At this stage you will have to show the reasons behind your split.
  2. You must apply for a decree nisi, which comes if your spouse agrees to the divorce. It’s a document that states that you’re allowed to go ahead and complete the permanent split.
  3. You should seek a decree absolute, which legally ends your marriage.

Agreeing to divorce

If you’re to manage your own divorce, you will need to agree on certain issues with your partner first. These include:

  • The reasons for you requiring a separation
  • How you’re going to look after any children in the future
  • How assets – such as money and property – will be split between the two of you.

Should you be unable to reach an agreement on any of these matters you’re likely to require legal representation, but if you’re both reading from the same hymn sheet a DIY divorce is entirely realistic.

For starters, agreeing on these matters will save you from a court hearing, while the paperwork involved when all parties are happy is fairly simple.

If you don’t agree

If you find that you’re not in agreement over one or more of the relevant issues but still want to go ahead with managing your divorce, you can turn to the professional mediation sector. Experts will be on hand to help you work out a settlement with your spouse.

Grounds for divorce

Before you can apply for a divorce, you must have reasonable grounds for doing so. There are five acceptable reasons for ending a marriage, so be sure your case fits one of them.

These are:

  1.  Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Living apart for two years and you both agree you want a divorce
  5. Living apart for five years with just one party wishing for a divorce.

Agreeing on the reason for your split is an important factor in being able to oversee your own divorce, as it will reduce the possibility of any legal wrangling in this area. You should note that you cannot use adultery as a reason if you lived with your partner for six months or more after you found out.ADNFCR-1645-ID-801684724-ADNFCR

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How to file for divorce in Scotland

Lawpack on March 27, 2020

There are two ways you can file for divorce in Scotland – by using the ‘simplified divorce procedure’ or the ‘ordinary divorce procedure’.

Simplified divorce procedure

With the simplified divorce procedure, the divorce is deemed to be ‘uncontested’ and so the divorce procedure is pretty straightforward.

It’s, therefore, quite easy to do a DIY Divorce in Scotland, but you need to meet the following criteria.

  1. You and your spouse must have no children under the age of 16, including adopted children or children accepted into the family, and you both must have agreed on the division of property and any maintenance payments, for the divorce to be ‘uncontested’.
  2. You, or your spouse, must have resided in Scotland for the year preceding the divorce, or consider Scotland your principal place of residence.
  3. Your marriage has broken down irretrievably as you and your spouse have lived apart (1) for at least one year and your spouse is willing to consent to the divorce, or (2) for at least two years.
  4. Neither of you has any mental health problems that would prevent you from managing your affairs should you divorce.

If, after the separation, you live together temporarily to attempt a reconciliation for a period of not more than six months, you can still apply for a divorce under the simplified divorce procedure, but you cannot count the period during which you were living together.

So, for example, if you separated for one year, lived together for four months and then separated again, you would have to wait one year and four months from the date you first separated if your spouse consents to a divorce, or two years and four months if your spouse doesn’t consent to a divorce in Scotland.

To divorce in Scotland using the simplified divorce procedure, you need to find your marriage certificate and complete one divorce form.

Ordinary divorce procedure

The ordinary divorce procedure is more complicated than a simplified divorce in Scotland. You must use this divorce procedure in the following circumstances:

  1. You have children under 16 years of age, including adopted children and children accepted into the family, even if the divorce is uncontested.
  2. The divorce is uncontested, with or without children under 16 years of age, if the grounds for divorce are unreasonable behaviour or adultery.
  3. All contested divorces.

If you need to divorce using the ordinary divorce procedure, you will need the assistance of a solicitor.

To divorce in Scotland using this procedure, you must serve an Initial Writ. The Writ includes the name and address of the husband and wife and the grounds for divorce.

The divorce form provides brief details, including the date of marriage, the dates of birth of the children under 16 and the date of separation. It also provides brief details regarding the care arrangements for the children.

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Divorce and financial orders explained

Lawpack on March 27, 2020

During divorce, when you and your spouse finally reach agreement over your finances, it’s vital that you reflect the terms of the settlement in a financial order. If you don’t, any financial agreement you reach won’t be binding. A financial order sets it in stone!

It’s only through a court order that your financial claims against each other can be dismissed, making it impossible for either of you to make financial claims against each other in the future. It’s important that you obtain a formal court order if you want to achieve absolute finality between you in relation to your financial settlement.

The divorce court can make financial orders any time on or after the pronouncement of the decree nisi. If you’re not able to agree the terms of your financial settlement, the divorce court will draft the financial order for you.

If you do reach agreement, you’re expected to draft the agreement between you and it’s then lodged at the divorce court for formal approval and sealing by a judge, providing that the judge is happy with the financial order and is satisfied that it reflects the fair terms of the divorce settlement. Once the financial order is sealed, it’s then binding upon both parties.

If you’re planning to remarry and you’re looking for any one of the following financial orders – lump sum financial order, property transfer financial order, sale of property financial order, pension sharing financial order – as part of your financial settlement, then you will need to issue your Form A before you remarry or your right to claim these financial orders will be lost.

Do note that maintenance orders cannot continue past the remarriage of the receiving spouse.

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Do I need a solicitor for my divorce?

Lawpack on March 27, 2020

More and more couples are opting for a quickie divorce and using the DIY divorce route to save money and time. But is a do-it-yourself divorce for you?

To find out if you need a solicitor or if you can manage a DIY divorce ask yourself the following…

Are you sure you have the proper grounds for divorce?

Your rights to a divorce are not automatic. You must show one of the five facts (outlined in our ‘Grounds for divorce‘ article) that prove the legal requirements to get a divorce.

You may need a solicitor to tell you whether you have a ground for divorce.

Is your divorce contested or uncontested?

If you and your spouse both agree that you should divorce, then your divorce will be uncontested. The vast majority of divorces are uncontested, so our Separation & DIY Divorce Kit and DIY Divorce Services suit most needs.

But if one spouse is unwilling to divorce, the divorce will be contested by that spouse. In this case, the services of a solicitor will be needed to determine whether there are grounds for divorce.

In an uncontested divorce you don’t necessarily need a solicitor unless you disagree on other issues, such as the division of your property or the levels of maintenance payments (properly known as ‘periodical payments’ in England and Wales and ‘periodical allowances’ in Scotland) to be paid by one spouse to the other, either for the benefit of your children under 18 or for the receiving spouse, or both.

Do you have minor children?

The most important issues in divorce are those involving the welfare of any child under 18 (under 16 in Scotland), known as ‘minor’ children. These issues include child support, parental responsibility and divorce orders for residence and contact (formerly known as ‘custody’ and ‘access’).

Because these issues are so important, the divorce court will be concerned that what has been decided is in the best interests of the minor children. Because the welfare and proper care of your children are paramount, it can be a good idea to ask a solicitor to approve the divorce agreements concerning your children that you and your spouse have made. An experienced solicitor can guide you to a divorce settlement that the divorce court will approve as being in the best interests of the children.

Do you have property which can be easily divided?

If your divorce consists of nothing more than deciding who gets the dog and the furniture, then you and your spouse can easily resolve these questions on your own without a solicitor. In order to ensure that you have no further financial claims on each other in the future, it will be necessary for you to obtain a consent order to this effect.

In Scotland, if no financial order is made on divorce or in a registered separation agreement, there can be no further financial claims on each other in the future once the divorce decree has been granted and the divorce appeal period has passed.

Do you have substantial assets?

If you own substantial property, you will want to consult a solicitor to make sure that you receive your full entitlement and that the division of property is tax efficient.

Even if the division of your property is likely to be straightforward, you may wish to seek the assistance of a solicitor to ensure that the agreement reached between you and your spouse is recognised by the divorce court as final and not something to be revisited in the future. You do this by setting the terms of your divorce agreement down in a consent order which the divorce court will then seal.

In Scotland, if the financial agreement is in a registered separation agreement, it doesn’t need to be recognised by the court or sealed by the court.

Do you or your spouse have connections abroad?

If you’re a foreign national or are living abroad, it may be appropriate, or more financially advantageous, for you to be divorced abroad rather than in the UK. If this applies to you, contact a solicitor immediately, as often any delay in issuing proceedings can be damaging to your claims. There are also different rules of service for those living abroad including those serving in the forces.

Do you need or expect future support from your spouse?

If you expect to be financially dependent upon your spouse after the divorce, you may need a solicitor to help you negotiate periodical payments and to make the obligation binding by means of a divorce court order.

To conclude…

You can do a DIY divorce if:

  • you and your spouse both want the divorce and agree on the division of property (if there are pension assets that you have agreed to divide, you should consult a solicitor, as they can only be divided after specific court orders have been made – this is a complex area);
  • you have no minor children;
  • your assets are not substantial;
  • you are not disputing maintenance or child support;
  • you are certain that you have the proper grounds for divorce.

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.

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My husband’s left me. He’s the main breadwinner. How am I going to pay the bills?

Lawpack on March 27, 2020

Firstly, don’t panic! If you can’t agree to your husband giving you some money, then there are various things you can do to get some money from him.

1. Apply to the court

You will need to ask the court for something called a ‘maintenance pending suit’ as quickly as possible. This is because it can take a while to get a hearing date. In the meantime, you might find yourself without money, so you should consider whether you’re entitled to any benefits. If you do make a court application, a judge will expect you to have investigated the benefits position.

2. Try and keep up with your payments

You need to try and keep meeting all your financial responsibilities. You don’t want to adversely affect your credit rating, which is particularly important with your mortgage company. If your husband usually pays the bills, then you may need to check that he is still doing so. In order to make sure that you don’t miss your payments there are companies that will give you a loan and take the money out of your divorce settlement.

3. Cancel any cards in joint names

One thing that you shouldn’t do is to use your husband’s credit cards without his consent. If you have cards in joint names, then you should cancel them.

4. Discuss things with your spouse, if possible

The best way to try to sort things out is to discuss it with your spouse first and use the court as a last resort. You could also try mediation, if you find it difficult to talk to your spouse without arguing.

5. Apply for interim periodical payments

If you have no other alternative but to go to court, then you can make an application for interim periodical payments after you have filed your Divorce Petition. If you haven’t already filed a document called a Form E which sets out your financial position, then you’ll have to send a sworn statement to the court which sets out your financial circumstances. Your husband will also have to send information to the court about his financial position.

The court will look at all the evidence and there will be a hearing about the interim payments. Any order that is made will stop when your divorce is finalised with Decree Absolute.

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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