What are my rights?
Judges in the Divorce Courts apply the criteria of Section 25 of the
Matrimonial Causes Act 1973 to achieve a fair division of the income and assets
between the parties.
Section 25 Matrimonial Causes Act 1973
The Court must have regard to:-
- The income, earning capacity, property and other financial resources which
each of the parties to the marriage has or is likely to have in the foreseeable
future including in the case of earning capacity, any increase in that capacity
which it would in the opinion of the Court be reasonable to expect a party to
take steps to acquire.
- The financial needs, obligations and responsibilities which each of the
parties to the marriage has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the
- The age of each party to the marriage and the duration of the marriage
- Any physical or mental disability of either of the parties to the marriage
- The contributions which each of the parties has made or is likely in the
foreseeable future to make to the welfare of the family including an
contribution by looking after the home or caring for the family
- The conduct of each of the parties if that conduct is such that it would in
the opinion of the Court be inequitable to disregard it.
- In the case of proceedings for divorce or nullity of marriage the value to
each of the parties to the marriage of any benefit which by reason of the
dissolution or annulment of the marriage that party will lose the chance of
acquiring [e.g. a pension].
Under the provisions of Section 25B the Court is specifically to have regard
to any benefits under a Pension Scheme which a party to the marriage has or is
likely to have and any benefits under a Pension Scheme which by reason of the
dissolution or annulment of the marriage a party to the marriage will lose the
chance of acquiring.
What are my choices?
There are a number of alternatives to divorce.
Before a divorce petition can be filed
with the Court the Petitioner's solicitor has to sign a Certificate to confirm
that he or she has discussed the prospect of reconciliation with his client.
Although often seen as such, visiting a solicitor's office is not necessarily
the end of the marriage.
see Separation Agreements for details.
see Judicial Separation for details.
see Mediation for details.
There is nothing to stop a married couple
living apart if for tax or other reasons it suits them to do so. It is only when
they fall out over something that the Courts need to become involved.
Can I divorce him/her?
Provided that you have been married for at least 12 months, are domiciled in
England and Wales and can prove one of the 5 grounds to show "irretrievable
breakdown of marriage" you can start divorce proceedings.
What will I live on?
The Court can Order one party to a marriage to pay maintenance to the other
each week or month but if this is impossible because for example the payer is
unemployed, Income Support or Working Families Tax Credit (if working) may be
Where will I live?
This will either be agreed with the other party or in the absence of
agreement decided by the Court. Any child's need for a home will be the Court's
first consideration. No sentimental value attaches to a family home which may
have to be sold to provide funds for both parties to be re-housed.
What should I do first?
Contact FJG by email on firstname.lastname@example.org
If you are not working or are in receipt of Income Support you will usually
qualify for free legal advice.
We also operate a £100+vat initial diagnostic interview to point you in the
right direction and advise you on the steps necessary to protect your position
legally whilst you negotiate with the other party.
How long will it take?
The average divorce takes 3 months from filing the divorce Petition to the
obtaining of a Decree Nisi. The time taken is a factor of the parties' own
desire to resolve outstanding issues and the Court's ability to process cases.
Although we have all heard of horror stories about the time taken to finalise
divorce proceedings, the majority of cases take between 6 and 12 months.
Do I have to go to Court?
No, if we are able to agree everything with the other party. If we have to
attend to sort out a particular problem you will have to be there. We cannot
usually do it without you! All court hearings are in private, and there is no
fancy dress. But there is some formality, and any evidence is usually taken on
Is conduct relevant?
No. Unless the conduct of the other party has been totally outrageous it will
not have any effect on the financial settlement.
What is a "Calderbank" offer?
A Calderbank offer is a "without prejudice" offer to settle the case on
specified terms. If those terms are not accepted the letter remains confidential
and cannot be shown to the Judge as a sign of weakness or an indication of a
party's negotiating position.
What is a Clean Break?
A clean break as the name implies, is a once and for all split of the assets
between the parties. Once the assets have been divided neither party can make
any financial claims against the other even if there is a substantial
inheritance, lottery win or loss of employment. "Clean breaks" are common for
young childless couples. As parties get older and near retirement "clean breaks"
are not always advisable because of health considerations and pension
What must I disclose?
You are under a duty to assist the Court and to give full and frank
disclosure of your true financial position and all relevant circumstances. This
includes any assets "hidden" from the tax man or your spouse and any plans to
remarry or co-habit. If you deliberately mislead the Court on Oath you may be
"in contempt" or commit perjury. In either case the punishment is Imprisonment.