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Divorce FAQ

Divorce FAQs

Is divorce the right way forward for you

When you feel that your marriage may have broken down, do not rush into a decision that affects the rest of your life without talking to us so that you can make an informed decision on the way forward. The team here at Brendan Fleming will offer you initial 30-minute advice on a fixed fee basis of £60.00 when you have or are about to separate and you have difficult decisions to make. It is easy to focus on your partner’s behavior particularly if they have a new partner and it is easy to focus on “who is to blame” but bad behavior on the part of your ex is not likely to play a part in any financial settlement as the Court are not usually influenced by how the parties behave towards one another when it comes to sharing out money.

If my partner has behaved badly towards me and is now going on a spending spree, will this affect what I get

If your spouse is deliberately doing something to hide assets or his financial spending is extreme or exceptional this could be seen as deliberately doing something to avoid paying you a reasonable settlement and may have an impact on your case. The Court has powers to make orders to freeze accounts in exceptional circumstances and any party not disclosing any assets is particularly frowned upon. If you suspect that your spouse is disposing of capital or savings for instance then you can ask the Court on an urgent basis to secure the funds pending the outcome of your financial proceedings.

I am certain that our marriage has broken down and wish to divorce. How much will an uncontested divorce cost me and can I ask my spouse to pay towards the cost?

The team at Brendan Fleming will offer you a fixed fee to deal with your divorce once discussing with you that you have the grounds to satisfy the Court that there has been an irretrievable breakdown of marriage and assuming it is an uncontested divorce this will cost you a fixed fee of £495 plus VAT together with a payment to the Court in respect of their fee for filing the Petition which is £550. As the petitioning party you must pay these fees in the first instance and you would then seek an order that your ex pay a contribution towards these costs and seek an order if they do not agree. Remember that your Marriage Certificate is filed with the court with your Petition and will not be returned to you.

I am concerned as to the cost of applying for financial provision for myself

If you are in a position where you cannot agree what will happen with your home and other assets including pensions then you have the option to discuss these issues and provide full and frank disclosure of your assets to each other in Mediation. If Mediation is not successful and you are unable to come to any agreement then you do have the option to issue an application for financial provision where the Court will consider what will happen to your home. whether there should be a division of any other assets or investments, whether there should be a pension sharing order and whether maintenance for you or for you to pay maintenance to your spouse is appropriate, (in addition to child maintenance which is a separate matter) The likely cost of proceedings depends upon your individual financial situation and the extent of the assets involved in your case. You will be provided with an estimate of the likely costs before any proceedings are issued and in some circumstances again we can deal with matters by way of an agreed fee which would include providing a schedule of the work that we intend to carry out for that fee. We do deal with matters in this way on an interim basis so that you can be aware of the work that will be carried out and so you can pay for the proceedings, stage by stage and be fully aware of the cost involved before any action is taken or continued.

I would like to deal with my own divorce proceedings but may need advice from time to time as to the process, can you help me

We can assist if you wish to act in person in your divorce or financial proceedings. You will be advised in face to face meetings and we will assist with completion of forms and documents at that meeting. We will not correspond with any party or the court directly but we can draft documents and correspondence alongside the advice. This is done at the meeting in the office face to face when you will be charged for the actual time spent with one of the Team and you will need to pay that charge at each meeting and will be provided with a receipt and invoice confirming what work was done on your behalf.

What financial orders can the Court make and what do they take into account when considering my application

The Courts can make several different types of Orders. These include: –

  • Maintenance Orders – an Order that you pay maintenance to your husband or that he pay maintenance to you. (This is completely different from child maintenance).
  • Lump Sum Orders – an Order that you pay a cash sum to your husband or that he pay a cash sum to you
  • A Property Adjustment Order – this is usually used to transfer the ownership of a house, but can also be used to be transfer the ownership of endowment policies, shares, cars etc.
  • Pension Sharing Orders – dependent upon the length of marriage the court could order that part of your husband’s pension is transferred to your pension scheme or a new scheme of your choice or the court could consider offsetting your interest in your husband’s pension by providing a greater share of the available capital to you now and leaving his pension provision intact. Of course, any pension you have already will be taken into account and/or your husband could claim against your pension scheme also.

Please bear in mind that there are some things that the Court has no power to do. In particular: –

  • The Court cannot order a lender to write off a loan
  • The Court cannot transfer debts from you to your husband or vice versa.
  • The Court cannot release one party from a joint loan or mortgage or transfer a joint loan or mortgage from two people to one person. This is subject to the lender’s agreement.
  • A pension sharing order cannot usually be payable earlier than your normal retirement date.

Before making any Order, the Courts must consider the following factors.

  • 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 the marriage 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 marriage;
  • The age of each party to the marriage and the duration of the marriage;
  • Any physical or mental disability of either of the party to the marriage;
  • The contributions which each of the party has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by the looking after the home or caring for the family;
  • The conduct of each of the parties. If that conduct is such that it would be in the opinion of the Court unfair to disregard.
  • Any particular financial loss as a result of the divorce.

 

There is a duty of “full and frank” disclosure in financial proceedings by both parties.

My partner and I have separated amicably and we wish to obtain an order for financial provision, by agreement. Is an order necessary?

Even if you have agreed with your partner what will happen with the house and other assets such as savings and pensions, it is still beneficial for you to obtain an order to ensure that your agreement can be implemented and that neither of you can make any further claims against each other in the future. Even if you have no property or assets to divide it is in your interest to obtain a “clean break” order to ensure that no claim can be made by either of you in the future if circumstances change, one party has a windfall for instance and in theory if you do not have your claims against each other dismissed, even after you are divorced, an application can still be brought before the Court for their consideration in the future. Remember also if there is any prospect that you may remarry particularly if you are the Respondent in the divorce, any financial order must be made before you remarry or you may be barred from making any claim upon the matrimonial assets.

How much would the cost be if we have an agreement and require a “clean break” order?

The costs would be dependent upon the amount of work that would be required to oversee and finalise the agreement. We would be able to provide you with a fixed fee to deal with matters by agreement and to provide you with the appropriate consent order and other documents that need to be filed at Court to enable your clean break order to be obtained.

I have started divorce proceedings but have had second thoughts and wish to try again. What can I do?

Starting divorce proceedings does not mean that you cannot attempt to reconcile with your partner provided that the Decree Absolute has not yet been applied for. A reconciliation of less than 6 months only puts the divorce proceedings on hold, it does not stop them. If your reconciliation proves to be successful then you can apply to dismiss the Petition and ask the Court to return your marriage certificate.

If you have not dismissed the Petition and you reconcile for more than 6 months and your marriage breaks down again, then you would have to file a supplemental Petition or cancel the previous proceedings and start again.

I do not wish to divorce currently but wish to enter into a Separation Agreement

You can enter into a Separation Agreement particularly if you wish to agree financial matters before you seek to divorce in the future. Maybe you have no grounds to divorce or you are intending to separate for 2 years and divorce then. The way that this can be achieved is for a written document can be drawn up which will incorporate the agreements reached by you both. Commonly such agreements deal with information that the parties to the marriage intend to live apart and will outline agreements with regard to the arrangements for the children, whether there will be payments of maintenance and what will happen to the matrimonial home. All these matters need to be incorporated into any Separation Deed so that a formal order can be obtained as and when you eventually divorce. Whilst there are no restrictions on what can or cannot be included in such an agreement, it is important to bear in mind that should either party make a future financial application to the Court, the Court is not necessarily bound by the financial arrangements that have been agreed to in the Separation Deed. However, if both parties have the benefit of legal advice and have provided full disclosure of their financial position before the Deed has been finalised then it is unlikely that the Court would overturn that agreement particularly if it had already been implemented by the time of divorce.