Check you can get a divorce & Preparing for a divorce (inc Form E)
Before deciding to divorce
This section will explain to you the basics of getting divorced. Whether you can get a divorce right now or not, and what the legal process involves. Read this section and the next section “Starting a Divorce, using a solicitor, & costs” so that you can understand exactly what this all involves. It will help you prepare mentally for the process should you wish to proceed with a divorce.
Check your jurisdiction, and if you can get a divorce
You can get divorced in England or Wales if all the following are true:
- you have been married for over a year
- your relationship has permanently broken down
- your marriage is legally recognised in the UK (including same-sex marriage)
- the UK is your permanent home, or the permanent home of your husband or wife
Legal separation
If you do not want a divorce, you can get a legal separation so you can live apart without ending the marriage. You might also be able to annul the marriage.
You can apply for separation or annulment during your first year of marriage (also known as “judicial separation”). A separation agreement can often be made into a consent order later in the divorce process.
Your solicitor will first ask you questions to check which country’s law will deal with your divorce court proceedings, financial matters and arrangements for children. The country where a divorce takes place can have a big impact on the divorce settlement – for example, a couple could end up with very different financial arrangements if their divorce is dealt with in England compared to if it were dealt within Portugal for example,or one of the US states.If your marriage has an international element to it (e.g. where your marriage took place, where you or your ex are a national of another country), the issue of jurisdiction can come up in the event you divorce.
In the UK the starting point for dividing the assets in divorce is 50/50. However the financial settlement will usually be different in every case as it depends on the parties’ circumstances and their needs when it comes to deciding what they should each receive from the matrimonial assets.So the law of the land is important to consider.
Decide the reason for the divorce
You should both try to agree the reason for your divorce, known as “grounds for divorce” to show that your marriage has “irretrievably” broken down. You and your partner should try to agree on one of these facts:
- Adultery: one of you has cheated (sexual intercourse with someone else of the opposite sex) – also known as committing adultery. You cannot give adultery as a reason if you lived together as a couple for more than 6 months after you found out about it
- Unreasonable behavior: one of you has behaved unreasonably – your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them. This could include: physical violence; verbal abuse, such as insults or threats; drunkenness or drug-taking; refusing to pay towards shared living expenses. You cannot claim unreasonable behavior if the last incident was more than six months previously and you have continued living together.
- Desertion: your partner has left you and you have lived apart for at least 2 years in total – known as “desertion”
- you have lived apart for at least 2 years and you both agree to the divorce
- you have lived apart for at least 5 years – it does not matter if your partner does not agree to the divorce
The court will not usually take into account any reasons for divorce when it comes to things like money or contact with your children.
You should research different solicitors before deciding which to choose. Find out their charges and how long they think the process will take. The solicitor should at least provide a clear estimate about what the initial cost of the divorce might be at the beginning of a case. Of course, it would be difficult to give an estimate if the case is or becomes complex. One of the reasons why costs can spiral out of control lies in the emotional rawness of many of those going through divorce proceedings
Civil partnerships
Civil partnerships are ended by a dissolution order. The process is the same as for a divorce, except that adultery cannot be a reason for dissolving a civil partnership. In a civil partnership, being unfaithful would be considered ‘unreasonable behavior
Contacting Solicitors & Conflict of Interest
Because a solicitors have a very strong duty of loyalty and confidentiality to their clients, if they consults with a potential client during the divorce proceedings, it would be deemed a conflict of interest for them to later decide to represent the other spouse even if the first spouse decided not to hire them after the consultation. This is because sensitive information will often arise during the consultation that could be used against the spouse.
So effectively, if you contact all the solicitors in the area you live in, none of those solicitor’s would accept your divorcing partner’s case. For this reason, it would be advisable to research (meet with as many solicitors) and find a most suitable solicitor as soon as possible. Divorce solicitors carry out a conflict check when first meeting a new client by checking to see if they or their firm has acted on behalf of a client that is related to you in this way.
Preparing for the divorce
During the divorce process you will need to complete a number of forms and be fully aware of yours and joint finances. We recommend you try and gather this information and papers before starting the process if possible to ensure you have everything you need, especially if your partner is difficult or you need to move out of the family home during the divorce process. Also be aware of the basics costs of filing applications and court fees, and if you use a solicitor, make sure you can pay for the fees (or be eligible for help with costs).
Do not under estimate the cost of life after divorce, therefore, it is extremely important that you complete a budget planning exercise to understand how much you will need in the future.. You will need this information to complete Form E.
budget_planner by Martin Lewis
The division of the matrimonial assets: Money, which would include savings and investments, present income, future income, Property, including the family home and any properties owned individually or jointly, business or businesses, any Life Insurance Policies, Pension, Furniture & appliances, Vehicles, Child maintenance payments, Spousal maintenance payments
Form E: This form is a comprehensive way for both parties to show their financial information. It is known as voluntary financial disclosure
Declaring gifts e.g. jewellery
As far as I am aware, any jewellery that was given to either partner as gifts can be considered as their own possession, i.e. does not need to be shared or converted into financial state in order to share. If you admit to your legal advisor that this was part of the matrimonial assets, then it is possible that you may be required to declare this on your form E. (Form E is the document which you and your spouse are required to complete if either of you apply to court about financial matters arising from a divorce or dissolution. It is a detailed document which is used to set out information about your financial position.). (Please see a link to Form E below.)
