Family law and divorce FAQs

A child arrangement order sets out who the children live with and how often they spend time with each parent after a relationship breakdown. Providing details of where the children live or when they spend time with a parent can provide stability and help reduce disagreements when tensions arise or the children are adjusting to different home lives. 

There are two types of orders the court can make:

1. A shared living arrangement order where a child/children live with both parties.
2. live with order, where a child/children live with one party and spend time with the other parent.

A child does not need to spend an equal amount of time with both parties for the court to order a shared living arrangement order. 

There are significant differences between these orders. Please contact one of our family team members to discuss this further.

Agreeing on where a child will live after a relationship breakdown can be a trying process. However, our dedicated family team are here to assist you. You do not have to issue court proceedings to obtain an order. At RIAA Barker Gillette (UK), we can help you reach an amicable agreement through discussion and negotiation, which you can then set out in a consent order.

The court no longer refers to ‘custody’ but child arrangement orders.

The court will consider each matter based on the circumstances of each family. However, the overriding and paramount considerations on which the court must base all its decisions are the welfare of the child and what is in their best interests.

The court uses eight factors set out in the Children’s Act 1989 welfare checklist to answer these questions. Two of the most critical and heavily relied-on factors are the wishes and feelings of the child/children and whether there is any risk of harm if contact occurs. Risk of harm can also include instances where a child has been or could be exposed to an environment where there is abuse between adults. If this is a concern, don’t hesitate to get in touch with one of our dedicated family lawyers, who will be able to guide you through your options.

As time passes, arrangements may evolve as children grow older, as they can express their wishes and feelings about how much time they spend with one parent. One of our experienced family solicitors can help you to navigate the process.

Since the new divorce laws were introduced in April 2022, your spouse can no longer contest or defend a divorce. However, they can still contest the divorce application on some limited grounds.

There are exceptional legal circumstances where your spouse could contest the divorce if you have filed for divorce on or after April 2022:

1. Jurisdiction:
   If you or your partner live in another country, your spouse may be able to challenge the petition on the ground that your divorce should not be heard by the Courts in England and Wales
2. If your marriage or civil partnership was never valid:
   For instance, if your spouse can prove that the marriage was not conducted in accordance with the laws of the country where you got married, this would mean that you did not enter into a legitimate marriage.
3. If your marriage has already legally ended:
   If your divorce proceedings have already concluded in another country.

To contest an application for divorce, one will need to file a response to the application and explain, with reasons, why the proceedings are disputed.

Getting divorced in the UK entails a 4-step process.

Step 1: Complete a Divorce Application – as a sole applicant or jointly as a couple.

Step 2: Submit the Application online (MyHMCTS) or via the post, with the Court’s fee of £593

Step 3: After 20 weeks of your spouse’s acknowledgement of the Application, apply for a Conditional Order

Step 4: After 6 weeks of the Conditional Order, apply for a Final Order

It is important to note that concluding a divorce does not conclude the financial relationship between you and your ex-partner. Now that the marriage has legally ended, it is worth tying up the knots in your financial relationship. This is done by reaching a financial settlement – a legally binding decision on how assets and wealth will be split after the divorce.

If there are children from the marriage, child arrangements must be made if required. These are dealt with separately from the divorce and finances.

On average, a divorce in the UK takes 6 to 8 months. There are two compulsory waiting periods:

1. The 20-week cooling-off period after the court has issued the divorce application before the Conditional Order can be granted.
2. The 6-week waiting period after the Conditional Order is granted until you can apply to the court for a Final Order.

There is a risk of further delays if there is a lack of cooperation by either party, complex financial concerns and/or child arrangements. Delays at divorce centres and family courts may often contribute to a lengthy divorce process. On average, it takes around 1 year to end a marriage and get a financial settlement.

If your spouse refuses to return the Acknowledgment of Service under the new no-fault divorce law (all divorce applications issued from 6  April 2022 onwards), you can still progress your divorce. This depends entirely on the circumstances of your case. Ultimately, you must look at other appropriate ways to prove to the court that your spouse has received the divorce application.

One way of doing so is by instructing a private Process Server to attend at their last known address, or place of work (known as substituted service), to deliver the divorce papers. Alternatively, you may ask court bailiffs to go to their property and deliver the divorce papers. If you have evidence that they have received it, such as an email or text message confirming receipt, you can then ask the court to make an order of deemed service allowing the divorce to continue.

Yes. The Child Maintenance Service (CMS) usually handles child maintenance. The CMS uses a statutory calculation to determine the level of child maintenance paid. However, you may need the court’s assistance if the non-resident parent earns more than £156,000. Please do contact us for further advice.

When agreeing on your finances, you can also decide on a figure and set this out in a consent order. However, 12 months after the date of the order, your spouse could apply to HMCTS for a re-calculation, which will supersede the maintenance sum in the order. If you are an unmarried parent, you can apply to the court under Schedule 1 of the Children’s Act 1989 for capital and, if applicable, income to support your children.

Yes, and where possible, we encourage reaching an amicable settlement without going to court.

There are many alternative forms of resolution, including but not limited to:

• Mediation:
  A mediator is an independent third party who helps you discuss the dispute and explore various solutions.
• Negotiation:
  This can take place between solicitors. At RIAA Barker Gillette (UK), we offer to arrange for you and your spouse to attend an early neutral evaluation meeting with a third-party expert (usually an experienced family barrister or retired judge). We provide the expert with all the relevant information in advance, including all the financial information and details of what each party seeks. They will then indicate at the meeting what a judge will likely order at a hearing.
• Arbitration:
  This is where both parties agree to an arbitrator (similar to a judge) hearing their case and making a binding decision on the dispute in place of a court. Both parties must agree to attend arbitration, as the order is binding on both parties. The advantage of arbitration is the speed by which an arbitrator can hear your matter. The downside is that the parties must meet the cost of the arbitrator.

Whichever means you prefer, we can assist you through the process.  

Yes, you should agree on how your finances will be divided and set this out in an order the court seals. The capital and income claims remain alive until the court dismisses them in an order- the final order in the divorce proceedings does not dismiss these claims.

In divorce and financial proceedings, it is essential to fairly divide and share the assets (which include savings, pensions, property, shares, and, in some cases, inheritances).

Each party is required to provide full and frank disclosure. When one party fails to be transparent with their finances or attempts to deceive or hide assets from the court/you, the court can penalise them by making a costs order or adverse inferences.

If you are worried that your spouse is attempting to hide, transfer, or dispose of money and assets, our experienced solicitors can assist. Our family law team has a wealth of experience and knowledge in dealing with cases involving hidden assets and, if applicable, a spouse who has failed or refused to disclose their assets. Ultimately, our experienced family solicitors will know where to look.

When you are separated or going through the divorce process, the terms of your will remain effective until you receive your final order (formerly known as your decree absolute). At this point, your ex-partner is treated as if they had died when your marriage or civil partnership was dissolved. It is always best practice to review and update your will on any life-changing event, such as a divorce, death, birth, or marriage. Speak to our private client team today to update your will.

Whether you are marrying for a second time or wish to protect the assets you have built up or inherited before your marriage, a pre-nuptial agreement can help fence and protect these from being shared in a divorce.

Whilst prenups are not currently binding in law, the court will likely hold you to the agreement provided you and your partner freely enter it and understand its implications. Agreeing at the outset of your marriage on how your finances will be structured and divided in case your marriage breaks down can provide certainty and clarity and remove the stress of litigation.

A Form E is the document you use to detail your finances. Details include all your bank accounts, properties, pensions, shares, income, and monthly outgoings. If you apply to the court for a financial order, the court would order that both parties prepare and exchange a Form E. If you are discussing matters between yourself or with the help of solicitors, you will still need to exchange financial disclosure so you both understand what the other party has. Voluntary disclosure of your finances in Form E is also a helpful way to start the negotiation process.

Financial disclosure is where you provide full details of all your finances to your spouse.

Financial disclosure is crucial because it allows you to assess the value of the matrimonial assets and income and negotiate a fair agreement. Providing full and frank disclosure of all assets and income is an ongoing duty in financial proceedings. The court must have all the relevant facts to ascertain a fair outcome. The court has wide-ranging discretion, so it must consider each family unit’s relevant circumstances.

You have the same rights. The court does not distinguish between the ‘homemaker’ (the parent who has stayed at home to care for the children) and the spouse who has a career and has provided financial support for the family.

The family home is a matrimonial asset, regardless of whether it is registered in joint or sole names. You should agree on how this will be shared and set this out in a court order. If you cannot agree, the court will make an order once it has reviewed the relevant circumstances in your case. The court can order that the house be sold or transferred into one party’s name. One of the court’s primary considerations when determining your housing needs is the housing of any minor children in the family. If you are the primary carer of young children, the court may order that you receive more than 50% of the house.

If you and your spouse or civil partner hold the house jointly, you legally own half of it. You cannot be evicted from your home (unless the court orders you to move out).

If the house is registered in your spouse’s sole name, we can take legal steps to help protect you and prevent you from being evicted.

If you are married, the family home is a matrimonial asset, whether registered in joint names or your spouse’s sole name. You should agree on how this will be shared and set this out in a court order. If you cannot agree, the court will make an order once it has viewed all the circumstances in your case. One of the court’s primary considerations when determining your housing needs is the housing of any minor children in the family. If you are the primary carer of young children, the court may order that you receive more than 50% of the house.