Divorce and Separation

The Matrimonial Causes Act 1973 sets out the law for seeking a divorce or order of  judicial separation.  It was anticipated that the law governing divorce would change radically with the passing of the Family Law Act 1996, which provides for a “no fault” divorce.  However the relevant parts of that Act have not been brought into force and it is no longer expected that they will be brought into force in the foreseeable future or, indeed, at all.  Therefore the law remains governed by the 1973 Act and is summarised below.     

Financial Implications of Divorce

Upon decree absolute a former wife loses the right to inherit any gift made to her in a will made by her former husband during the marriage, upon his subsequent death, or, in the absence of a will, to inherit from him under the Intestacy Rules.   

A former wife will no longer be entitled to receive eg a widow’s pension under a state or private pension scheme, on her former husband’s death.  However, orders sorting out the finances between a married couple can be made upon divorce.  These are generally called orders for “ancillary relief” and can include orders for sharing certain benefits under a husband’s private or occupational pension and orders for splitting the pension fund, so that the former wife will be able to use a part of the pension fund accumulated to provide for a pension for herself.  Orders available depend also upon the rules of the pension fund and advice from a solicitor should be sought to ensure that the appropriate orders are obtained. 

Following divorce a woman may elect to rely on the national insurance contributions made by her former husband, rather than her own, to determine her eligibility for a state pension. 

If, during the marriage, the couple have been living in a home in which the woman does not have a legal interest – ie only the husband’s name is on the title deeds (if the property is owned) or on the tenancy (if rented) - her right to live in the property follows from the marriage and is lost immediately upon divorce.  Therefore, if the woman wishes to remain in the property it is important that appropriate measures are taken to protect her interest prior to the decree absolute of divorce being made.  Again, the woman should seek advice on this from her solicitor.

The court has a wide discretion to make orders for financial provision (ancillary relief) between former spouses, upon divorce.  These include orders for payment of maintenance, lump sum payments, splitting and sharing of pensions, transfer of the interest in the matrimonial home and other property.  The court takes a number of factors into account in deciding what financial orders are appropriate.  These include: 

(a)     the respective resources of each party, now and in the foreseeable future (eg earning capacity);

(b)    the respective needs and responsibilities of the parties (eg to care for any children)

(c)     the contributions made by each party to the marriage – including the contribution made by a wife in maintaining the home and bringing up the children of the family;

(d)    the length of the marriage;

(e)    the ages of the parties;

(f)      only in the most exceptional of cases, the conduct of the parties to each other during the marriage or the divorce process.

Where appropriate the court may make financial orders which sever permanently the financial relations between a divorced couple (known as a “clean break”).  It is also possible for a former couple to reach agreement as to how their property should be distributed between them and to ask the court to approve the agreement by the making of a “consent order”.  If the court does approve the agreement and makes a final order, this will mean that if, for example, the former husband does not comply with the terms of the order, the former wife will be able to make an application to the court to enforce the order. Even where there is agreement, parties should seek the assistance of a family solicitor who can advise as to whether it is a fair and reasonable agreement, and who will draft the application for the consent order, using the appropriate technical terms to ensure that the order made does definitely reflect the agreement reached.

A parent’s legal obligation to provide for his child cannot be ended before the child reaches the age of 18.  Orders for lump sum payments and for the transfer of the interest in property may be sought for the benefit of the children and similar factors, as those outlined above are taken into account by the court.  However the court cannot generally make orders for payment of maintenance for the benefit of the children. 

Instead, upon separation, application should be made to the Child Support Agency (CSA), who follow a formula for calculating what an absent father should pay, based upon his financial circumstances and the number of children.  A guidance book and application form should be available from the Post Office or advice agencies, eg the Citizens’ Advice Bureau.  Unmarried parents can also apply to the CSA for a child maintenance assessment of the parent who does not live with the children.  

Arrangements for the care of children

Upon the break-down of a marriage or other relationship, where the couple have children, arrangements for their care and for the absent parent’s contact need to be considered.  If agreement cannot be reached, application may need to be made to the court.  The law governing such applications is set out in the Children Act 1989 and is dealt with in a separate advice sheet

Grounds for divorce

Domestic violence is the most common cause of divorce. To apply for divorce you have to be married for at least one year, which can be a terrifying situation for women that experience violence immediately after marriage.

If a woman wants a divorce she should be advised that legal aid is not available for a straight forward undefended divorce, although she can see a solicitor for assistance under the green form scheme. The court has to be shown that the marriage has irretrievably broken down for one of the following reasons:

• Adultery.
• Unreasonable behaviour e.g. mental or physical cruelty, violence or rape.
• Desertion for a continuous period of two years or more.
• The partners have lived apart for two years and both consent to divorce.
• The partners have lived apart for five years, in which case consent is not required.

Undefended divorce

Where there is no opposition to a divorce, a petition will have to be processed, with a statement about the arrangements for the children, signed by both parties. Documents are filed in the court with a request for directions. If the judge considers the petition and agrees that the parties should divorce there will be a hearing where a decree nisi is pronounced. Six weeks and one day after the decree nisi, the woman can apply to the courts for a decree absolute. Once the decree absolute is issued the divorce is final.

Defended divorce

If the husband contests the divorce, the woman should seek legal advice. If the woman wishes to keep her address secret, she can always ask to use the solicitor’s address for correspondence. Women can apply for an injunction at the same time as they are applying for a divorce or formal separation.

Judicial separation

An order for judicial separation is a formal recognition that a husband and wife have separated and means that there is no longer any legal duty for them to continue living together.  However they do remain married and therefore neither can remarry.  The law and process for obtaining a decree of judicial separation is very similar to that for obtaining a divorce (see below).  Financial orders for maintenance of the separated wife and for the payment of lump sums and the transfer of property etc can be made.  However an order for a “clean break”, permanently severing financial relations, cannot be made as the parties remain husband and wife. 

Unmarried couples living together

There are no legal rights or obligations between couples who live together as if they were husband and wife or in a same sex relationship.  The well-known term “common law wife” has no legal status.   

Upon the death of one party, the surviving partner will only inherit if she has been left a gift in the other’s will.  If the person dying has not made a will, the estate will be distributed in accordance with the Intestacy Rules and these exclude a surviving unmarried partner.  A surviving partner may be able to make a claim for financial provision from the deceased person’s estate under the Inheritance (Provision for Family and Dependants) Act, but she will have to show that she is a dependant and such a claim is far from straightforward.

In contrast to the position of a woman who is married and seeking a divorce, upon separation an unmarried woman cannot claim from her former partner maintenance for herself or other financial provision.  In very limited circumstances, for example where she has made a contribution to paying the mortgage, and it can be demonstrated that there was an intention that she should have a financial interest in a property wholly owned by her former partner, it may be possible to obtain a declaration from the court that she should have recognised a financial share in the property.  However this is a complex area of law and advice from a solicitor specialising in this area should be sought.

Under the Children Act 1989 a claim for a child of an unmarried couple to receive a lump sum or an interest in a property may be made.  Also child maintenance may

The Civil Partnership Act 2004 (CPA) changes the law relating to homosexual couples who register a civil partnership.  This Act is coming fully into force on 5^th December 2005.  Those couples who register a partnership under this Act will obtain similar rights and responsibilities to married couples.  A registered civil partnership will come to an end only on death, dissolution or annulment by the court.  A civil partner will be in the same position as a spouse in respect of inheritance upon death of the other partner and will be able to apply for financial orders, upon separation and dissolution of the partnership.  The CPA will not apply to cohabiting heterosexual couples.

The Divorce application

Proceedings for divorce are commenced by petition in either the local county court (for Newham this will be Bow County Court) or at the Principal Registry of the Family Division, in High Holborn.  The person seeking the divorce is called the petitioner and the other party to the marriage is called the respondent.  A petition for divorce cannot be issued until after the parties have been married for one year.  There are requirements for at least one of the parties to be domiciled or habitually resident  in England and Wales (Scotland is a separate jurisdiction). 

There is one ground for divorce.  This is irretrievable break-down of the marriage.  This can be proved by demonstrating one or more of five different facts.  These are:

(a)               the respondent has committed adultery with another woman – without an admission from the husband this is difficult to prove.  It is not necessary or recommended to name the other person party to the adultery;

(b)              the respondent has behaved so unreasonably that the petitioner cannot reasonably be expected to continue to live with the husband;

(c)               the respondent has deserted the wife for a period of at least two years – it has to be shown that the respondent had no good reason to leave;

(d)              the parties have lived apart for at least two years and both consent to a divorce;

(e)              the parties have lived apart for at least five years – consent is not required.

There are various requirements about what is meant by living apart, how the period of separation can be made up and restrictions on how long after knowing of the adultery or last incident of unreasonable behaviour a petitioner can continue to cohabit with the respondent and still rely on this in the petition.

The most common facts relied upon are (a), (b) or (d).  Unreasonable behaviour can be demonstrated by one or a few very serious incidents or an accumulation of bad behaviour.  The impact of the behaviour upon the petitioner, including injury, distress, anxiety, losing self-confidence are relevant factors to be considered.

It has to be demonstrated that a petition has been served on the respondent (ie received by him).  Therefore it is most helpful for his whereabouts to be established before the proceedings are commenced.  Sometimes this is not possible.  Application can be made for the court to direct the Department of Work and Pensions or other similar government body to disclose details of his address, eg if it is known that he is in receipt of state benefits.  Alternatively, if it is known where he works or that he regularly visits a relative, the court may be satisfied with service upon another person. 

Most petitions for divorce are undefended, in which case there is no need for either party to attend a hearing at the court.  Once it is demonstrated that the respondent is aware of the proceedings and he has either confirmed that he does not intend to defend or the time limit for filing a defence has passed, application for directions for trial (special procedure) is made.  In effect this is the application for a District Judge to consider what is said in the petition and in an affidavit sworn by the petitioner and to decide whether  the fact(s) relied upon for demonstrating irretrievable break-down of the marriage are satisfied.  Assuming the DJ agrees that all is in order he or she will fix a date for pronouncement of “decree nisi”.  This is the formal declaration that a petitioner is entitled to a divorce and the names of the parties are read out in court.  Six weeks and one day later the petitioner can make application for the decree nisi to be made absolute.  Only once the decree absolute has been issued by the court are the parties divorced.

A very few divorce petitions are defended.  Most of these are compromised in the course of the divorce proceedings, as it is nearly always accepted, at some stage, by both parties that the marriage has indeed broken down irretrievably, even if the facts alleged in the petition are not accepted.  Ultimately, in a fully defended divorce a Judge will hear the facts at a court hearing open to the public and will make a decision as to whether the divorce should be granted.  A petitioner should certainly seek legal representation.

Legal assistance and representation

Free legal advice and assistance may be available under the legal help scheme (formerly known as the green form scheme) funded by the Legal Services Commission (LSC) and operated by family solicitors who have a contract with the LSC.  Eligibility for this scheme depends upon a person’s financial circumstances.  Only those in receipt of certain state benefits or on a very low income will qualify, and eligibility is also subject to an assessment of capital.

Legal help can cover initial advice on the consequences of relationship break-down, including resolving disputes about the care of the children and financial matters, and all steps up to and including decree absolute of divorce, when undefended.  However there is a limit to how much work can be done under this scheme and a solicitor will advise of this.  Also, legal help does not extend to representation at a court hearing.

If a divorce becomes defended or there is a need to attend court to resolve disputes about finances or arrangements for the children, public funding may be available.  It is normally required for parties to attend to see an approved family mediator before an application for public funding may be made, but there are exceptions to this rule.  Public funding is subject to a separate means test and to a merits test.  If, as a result of the representation, property or money is preserved or recovered part of this may have to be used to pay back the solicitor’s costs to the LSC.  This is known as the “statutory charge”.  The solicitor will provide detailed advice as to whether or when this may apply.

A person who is not eligible for financial assistance with the costs of legal advice may be able to arrange for some initial advice from a solicitor on a fixed fee basis.  The CAB should be able to provide details of solicitors’ firms who may offer such a service or, possibly, an initial free interview.  If a solicitor is instructed thereafter the client should be informed of the hourly rates and of an estimate of the likely total costs, such estimate to be regularly reviewed in the course of the proceedings.

In the case of a straightforward divorce a person may feel able to deal with the proceedings without a lawyer.  Information leaflets and standard forms are available from the court office.  However it is recommended that some initial legal advice is sought, especially with regard to sorting out financial matters, and that a solicitor is instructed in more complex cases.

Many solicitors who specialise in family law are accredited either by the Law Society or Resolution (a professional organisation for family solicitors).  Either organisation should be able to provide details of local solicitors specialising in family law.  Alternatively details should be available at the local CAB.

Law Society – Tel: 0870 606 6576

Website: www.lawsociety.org.uk

Resolution – Tel: 01689 850227

Divorce provision: The Family Law Act 1996

Part IV of the Family Law Act 1996 was introduced in October 1997. Parts I, II and III, which deal with the new system for divorce and legal aid for mediation, will be introduced after they have been piloted.

The overall aim of the Act is to enable a ‘no fault’ divorce, with divorce being allowed on request from either party, subject to an ‘information session’ and a waiting period of at least a year following the original statement that the marriage has broken down. During that waiting period, the divorcing couple will be encouraged to reach agreement (preferably through mediation rather than legal proceedings) about arrangements for the children and the division of any property (including the matrimonial home).

In cases of domestic violence, the introduction of the new provisions for divorce may be helpful in some ways and cause more problems in others. Part I of the Act contains a new principle, that any risk to the safety of the parties should be minimised or reduced by the court or other professionals within family proceedings relating to divorce. A number of other provisions may also be helpful: information about support and protection from domestic violence must now be provided in the divorce information sessions; parties have a right at the court directions stage to have separate meetings to receive information about mediation or other matters; and it is recognised that mediation, which is voluntary, is inappropriate where there is a fear of violence by either party.

However, it is now likely that getting a divorce may take much longer even where there is domestic violence. At present women can often get a divorce within six months; in the future this will take a minimum of one year, and up to 18 months, unless there is an injunction in force. This is likely to create problems in getting rehoused. There is also concern that women may feel pressured to meet with their abuser for mediation, even though they do not have to if they are at risk of violence.