separation – Lawpack

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:

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.
If your petition is based on adultery, then you must have evidence that your spouse admits to the adultery.
If your petition is based on unreasonable behaviour, then you must have evidence that your spouse admits to unreasonable behaviour.
If your petition is based on desertion, then you must have evidence that your spouse admits the desertion.
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

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.
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.
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:

Adultery
Unreasonable behaviour
Desertion
Living apart for two years and you both agree you want a divorce
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.

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’.
You, or your spouse, must have resided in Scotland for the year preceding the divorce, or consider Scotland your principal place of residence.
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.
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:

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

Related Products:

Separation & DIY Divorce Kit
Download a Separation Agreement today

Our Fixed-Price Divorce Services:

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DIY Divorce & Consent Order Service
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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.

Other information

Splitting up: Should we draw up a separation agreement?

Lawpack on March 27, 2020

Divorce lawyers say there is a lot of confusion about what separation is.

You can be separated but remain married. This period of separation can count towards the divorce, if you finally decide to divorce.

You can also be separated even though you continue to live under the same roof; this is called ‘living in two households’.

Some people believe that they are practically divorced, or that they don’t have to do very much to get a divorce, after they have lived apart for a number of years.

The truth is that you have to go through the same procedure no matter what the reason for your divorce, and it takes just as long.

If you divorce and get your financial split approved by the court, your former spouse can’t make any money claims against you in the future, apart from changing the maintenance.

If you separate, you can’t get any financial agreement approved by the court, so you are still at risk of money claims being made against you by your spouse for many years to come.

Do you need a separation agreement?

Some couples draw up a ‘separation agreement’, which sets out the following details about the separation:

The date of the separation
Who will bring the divorce petition (if appropriate)
Where the children will live
Contact arrangements with the other parent
The financial agreement reached between you on maintenance and capital.

It may also acknowledge that a property has been sold and how the proceeds have been divided.

Does the separation agreement need to be put in writing?

There is no need to put a separation agreement in writing, but it can be an important piece of evidence later if one of you wants to go back on it.

Generally, you have the basis of an agreement in relation to future arrangements such as maintenance payments.

If you want to put it in writing, then Lawpack’s solicitor-approved Separation Agreement is here to help.

The pros and cons of a separation agreement

One advantage of a separation agreement is that you can agree to split the money straightaway, without waiting for the divorce/dissolution.

If you have a separation agreement and you have agreed that your spouse will take on the mortgage, and take your name off it and the deeds for the house, you can buy a new place without having to wait for the divorce/dissolution.

One of the disadvantages of a separation agreement is that neither the court nor the couple have to keep to it.

In addition, when you do decide to dissolve your marriage or civil partnership, you will need to pay out again for the financial agreement being made into a document that the court can approve. This will mean a double charge if you have already had a lawyer draw up your separation agreement

One thing you might consider before signing a separation agreement is that if you have decided to split, why wait to divorce? You may as well get it over with. Renegotiating the money on a divorce/dissolution can open up old wounds.

Can I get the court to approve our separation agreement?

Generally, you can’t get these approved until you are divorcing, unless you are judicially separating.

There are no hard-and-fast rules on this, and there are cases which suggest that some people are held to these agreements, whilst others are not, for a variety of reasons.

However, if you fulfil enough of the criteria, you have a good chance of creating a binding agreement. Some of the criteria is set out below:

Each of you should give full disclosure of your financial circumstances.
Each of you should take independent legal advice.
There should be an absence of duress, or pressure on one party to sign off on the agreement.
Each of you should have time to consider your position.

The court can take many different factors into account and the above list is not exhaustive.

If you think that your marriage is over, and you want to finalise everything, financially you are probably better off getting divorced sooner rather than later.

A separation agreement is a good idea if you think you might reconcile and just want to put some interim arrangements in place, rather than taking the drastic step of ending your relationship.

Related articles:

Separation agreements explained

What are the grounds for divorce?

Lawpack on March 27, 2020

In England and Wales, you can only divorce if you have been married for at least one year.

To divorce in Scotland, you, or your spouse, must have lived in Scotland for the year preceding the divorce, or you must consider Scotland as your principal place of residence.

There is only one basic ground for divorce: the irretrievable breakdown of the marriage. You can prove irretrievable breakdown by establishing one or more of the following ‘facts’ for divorce:

Fact A. Adultery

You must prove that, either through actual admission or through sufficient circumstantial evidence, your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. If a sexual liaison short of sexual intercourse has taken place, it’s suggested that the unreasonable behaviour ground is used.

In England & Wales, you can name the other person involved as a co-respondent but this isn’t essential and can have serious consequences. Doing so can make the divorce proceedings more acrimonious, more complicated and more drawn out. It’s, therefore, usually best to avoid naming a co-respondent. If you wish to name the other person in your divorce proceedings, it’s best that you take legal advice before doing so. In Scotland, you must name the other person involved.

Adultery can be used as the basis for a divorce petition, whether you and your spouse are still living together or there has been a separation, but, in either case, not more than six months must have elapsed since you became aware of the adultery before the divorce petition is sent to the court.

Fact B. Unreasonable behaviour

You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. Unreasonable behaviour is now the most common fact on which to prove the ground for divorce in England and Wales. In an unreasonable behaviour divorce petition, the ‘petitioner’ (the person who starts the divorce proceedings) sets out a number of allegations against the ‘respondent’ (the person who receives the divorce petition).

These allegations might include references to excessive drinking or financial extravagance, for example; but it’s worth bearing in mind that the court doesn’t insist on really severe allegations of unreasonable behaviour in order to grant a divorce. Relatively mild allegations, such as devoting too much time to a career, having no common interests or pursuing a separate social life may well suffice. Using mild allegations may also make it easier to agree a divorce petition with your spouse in advance.

Fact C. Desertion

Where your spouse deserted you without your consent for a continuous period of at least two years; this fact is almost never used. This ground of divorce has recently been abolished in Scotland.

Fact D. 2-year separation (England & Wales) / 1-year separation (Scotland)

By consent you and your spouse have been living apart for at least two years in England and Wales, or one year in Scotland, immediately preceding the presentation of the petition (or ‘Initial Writ’ in Scotland) and you both agree to a divorce.

Fact E. 5-year separation (England & Wales) / 2-year separation (Scotland)

You and your spouse have been living apart for at least five years in England and Wales, or two years in Scotland, immediately preceding the presentation of the petition (or ‘Initial Writ’ in Scotland). In this instance, your spouse doesn’t need to consent to the divorce.