Q&A: Divorce, Separation and Child Custody


How do you get a divorce in England & Wales?

Since marriage is a legally binding contract, you need a legal process to undo it. That does not have to involve going to court.  If both sides agree, they can sign various documents to effect the divorce. If they don’t agree, then divorce can only happen with a court order.

What are divorce proceedings, and what grounds do I have for getting divorced?

A: Divorce proceedings involve a “petition” to the Court. If you are applying, you have to show that the marriage has “irretrievably broken down”, the evidence for which can be one of five factors.  These include adultery, unreasonable behaviour (which can include anything from violence to belittling your spouse and any number of behaviours in-between), desertion, separation for two years if your spouse agrees, or separation for five years, if he or she doesn’t agree.

The divorce petition is filed with the court and then served on the other spouse, who has the opportunity to respond. If the petition is not contested, the petitioner applies for a decree nisi (a somewhat anachronistic Latin term meaning “unless”), which is the first part of the court order. The petitioner then applies for a decree absolute six weeks later, which sets the seal on the divorce.

How are the finances settled?

The starting point for the court may be that each spouse takes half the combined assets, but there will be many other factors that come into play, such as paying for children and the contributions each spouse made to the relationship (both financial and non-financial). Each case is different. Again, if the spouses cannot agree on splitting the proceeds, the court will have to decide.

Is it possible to separate without getting a divorce?

A: You can a formal separation agreement, which will spell out what you want to do with the matrimonial home, assets, money etc, as well as any arrangements for children (if any).

I am not married but we want to separate.  What is the legal position?

You don’t need a legal document to separate, but there may be a question of how to divide the assets. Ideally, you should come to an agreement. If you don’t, neither party will have any rights to the assets of the other. If, for example, the ownership of a property is in one name, the other partner will not be able to claim a right to part of the proceeds of sale. This may be an over-simplification, but the advice in the case of unmarried partners is always to reach agreement at the outset of the relationship and write it down!

What about children, custody and access?

A: “Custody” and “access” no longer exist in English law as legal concepts. Parents who cannot agree will be required to attend mediation, or at least a meeting designed to find out whether might be suitable to help the parents come to an agreement. This is known as a mediation information and assessment meeting (MIAM).

If the two partners still cannot agree on who should look after the children and when, there will be a “child arrangements order” set by the court. The court’s starting point is that a child should have a relationship with both parents, unless they are at risk of harm, and that there should be continued parental involvement.

If you need legal advice on a divorce, family law, separation or child custody issue, you can contact a family law barrister via myBarrister. 


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