friendly, helpful, approachable, accessible

This does not mean that we will not act in the interests of our clients as there may be occasions when we need to take a firm and uncompromising line to protect our client's interests but our prime concern will be to satisfactorily conclude everything as quickly and painlessly as possible so that all parties can move on to a more settled future.

We are able to advise same sex couples on any issues arising before entering into a Civil Partnership or the consequences of a Civil Partnership breaking down.

This page is divided into the following major sections:-

A divorce may be applied for if the marriage has irretrievably broken down, which is proved by one of five facts:-

A divorce can only be started if the parties have been married for at least a year unless special circumstances apply.

The general procedure is outlined below:-

 A Divorce Petition is prepared setting out the parties involved and the grounds for the divorce and, if appropriate, a Statement of Arrangements form completed which details the proposed arrangements for the child(ren).

1.  The Divorce Petition will be lodged at the Court and the papers issued and served upon your spouse by post.
2.  Your spouse will then need to complete an Acknowledgement of Service Form and return this to the Court. If your spouse does not return the Acknowledgement of Service Form it may be necessary for the form to be served personally by the Court Bailiff or other agent.
3.  Once a copy of the Acknowledgement of Service Form is received by us from the Court we can prepare an Affidavit (which you must swear on oath) on your behalf to apply for the Decree Nisi.
4.  The Decree Nisi is the first stage of the divorce and will be granted in open Court once the District Judge has certified that all procedures have been complied with. There will be no need for you attend that pronouncement unless there is a question of costs to be resolved.
5.  You will be able to apply for the Decree Absolute after six weeks have passed. In some circumstances we would advise that this be delayed where finances are not resolved. The Decree Absolute will finally and irreversibly dissolve your marriage. This will also end any automatic rights that you have to your spouse's pension or inheritances.

It is likely that the full procedure should take 3 to 4 months to obtain your Decree Absolute depending on the time it takes your spouse to respond.

There are a number of reconciliation agencies available which may be able to assist you.

Dissolution of Civil Partnership

The procedure for dissolving a Civil Partnership is basically similar to that for a divorce although adultery cannot be used as grounds for dissolution.

In connection with financial matters, in order to fully advise you we will need full disclosure from both yourself and your spouse/civil partner on your respective financial positions. If you and your spouse/civil partner own your property jointly as "beneficial joint tenants" then if one of you were to die the property would automatically pass to the other. This can be altered by serving a Notice of Severance, if you so require.

The Court fix a date for a First Appointment which you and your spouse/civil partner will need to attend.

Before the First Appointment you and your spouse/civil partner will each have to complete a Financial Circumstances Form (Form E) which will sets out full details of both respective parties and which must be sworn on oath. You both have an obligation to make full and frank disclosure of all material facts, documents and other relevant information.

The Court also require copies of the following documents, which must be attached to your completed Form E when applicable:-

The Form E must be lodged with the Court and served on your spouse/civil partner or his/her Solicitors 35 days before the First Appointment.

Once you and your spouse/civil partner have both filed your Form Es then each party will have the opportunity to ask for additional documents and information they feel has not been fully detailed in the others' Form E.

The purpose of the First Appointment is to define issues and to save costs. The District Judge will see if any further documentation should be provided and whether any expert evidence (such as valuations) need to be obtained. If the case is not likely to be resolved at the First Appointment then it is adjourned for a hearing known as a 'Financial Dispute Resolution Appointment (FDR)' at a later date.

The purpose of this hearing is to ensure that all parties use their best endeavours to reach agreement. The District Judge will actively try to help you and your spouse/civil partner settle the case by offering suggestions and solutions wherever possible. You do not have to accept the advice of the District Judge but the aim is to try to bring about an amicable settlement and reduce the costs incurred.

If all the financial information is available at the First Appointment then the District Judge can treat that appointment as an FDR.

If no agreement is reached at the FDR the case will be adjourned for a Final Hearing. At this hearing the District Judge will hear full evidence from both parties and any relevant witnesses. Ultimately the District Judge will make an Order as to the disposal of the assets which will be binding on both parties.

At every stage the Court will wish to see evidence that all parties are trying to negotiate a settlement.

If there are children involved the Children Act 1989 applies. Under this the Court regards the welfare of the child(ren) to be the first and paramount consideration. However, there is a presumption that there should be no order as to the arrangements regarding the child(ren) unless the circumstances are considered to be exceptional.

Even after a divorce/dissolution, both parents retain Parental Responsibility for the child(ren) which means all the rights, duties, powers and responsibilities and authority which by law a parent of a child normally has. This includes making decisions over medical treatment and being involved in the education of the child(ren).

In circumstances where the parents are NOT MARRIED, only the mother has parental responsibility, even if the father is named on the Birth Certificate and/or has helped to bring up the child(ren). The father can acquire parental responsibility by either an agreement with the mother or by a Court Order or if he is named on the Birth Certificate as the father from December 2003 onwards.

If a non-parent obtains a Residence Order then they are also automatically granted parental responsibility.

Only if the question of where the child(ren) is/are to live is in dispute will there need to be an application for a Residence Order.

Similarly, if there is a dispute as to whether the party who does not have the child(ren) living with them should see the child(ren) an Application for Contact needs to be made.

Usually if an application is made to the Court then a First Directions Appointment will be conducted on an informal basis with both parties present. A Child and Family Court Advisory, Support Service (CAFCASS) Officer may also be present whose job is to assist and advise the Court where children are concerned and you may be invited to talk to them together with other adults involved. The aim of this meeting is to clarify matters and for each adult to hear and understand the other person's concerns. This can lead the way to finding a level of agreement. If you have any worries about this sort of meeting, please alert the CAFCASS Officer when you arrive.

A District Judge often asks for a formal Court Welfare Officer's report to be prepared if the Court is being asked to make a decision due to lack of agreement and will then fix a further Directions Appointment when this can be considered. The CAFCASS Officer who will be preparing the report will contact you by letter with details of the first appointment. The CAFCASS Officer will interview the adults and children involved and write a report for the Court to facilitate the process of making decisions about the children. Occasionally the District Judge decides that a full hearing needs to be fixed without a further Directions Appointment. If often happens that people find a way to agree on what is best for the children before the Court reaches a full hearing.

In deciding whether to make any Order the Court will have regard to the following matters:-

1. The ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);
2. The child's physical, emotional and educational needs;
3. The likely effect on the child of change in his or her circumstances;
4. The child's age, sex, background and any other characteristic that the Court considers relevant;
5. Any harm which the child has suffered or is at risk of suffering;
6. The ability of each of the child's parents (and any other relevant person) to meet the child's needs;
7. The range of powers available to the Court under the Children Act in the proceedings in questions.

The Child Support Agency (CSA) is a Government-run agency which assesses what maintenance should be paid for a child by a 'non-resident parent' to a 'parent with care' (ie. the parent not living with the child to the person who is). The CSA calculate the maintenance due. All three parties must be resident in the UK for the CSA to be able to make an enforceable assessment. A 'child' is defined as being under the age of 16; or under 19 and receiving full-time education; or under 18 and either not working or undertaking a Training Scheme (a person is automatically excluded from being defined as being a 'child' if they are married).

Once a maintenance assessment has been made, it will be notified to the non-resident parent. If the non-resident parent fails to pay the maintenance, such payments can be enforced by, for example, an Attachment of Earnings, deduction from benefits or Warrant of Execution.

The right to make decisions about a child's welfare rests with the person who has Parental responsibility. However the Local Authority Social Services Department has a duty to ensure children are safe and if it has concerns it can apply to a Court for a Care Order so the child is removed.

The application can only be made if the Social Services Department has grounds to believe the child has suffered serious harm or is at risk of suffering serious harm.

Care proceedings are started in the Family Proceedings Court and governed by strict guidelines.

There are three main stages:-

In Care proceedings it is vital to seek Legal Advice and representation is free to parents and people with Parental Responsibility.

Ginnie Lambert has been approved by the Law Society to be on their Children Panel and has considerable experience in these types of cases.

If a parent removes a child from the home or country of residence without the permission of the other parent or a Court Order then this is regarded as a criminal offence in the UK.

A UK resident can take a child abroad for up to 28 days if there is a Residence Order in their favour.

If a child is removed to another country without permission or Court Order then that other country can order the child to be returned PROVIDED that the other country subscribed to the Hague Convention on Child Abduction.

We also recommend these useful web sites which may provide additional information and assistance in this field:-

You could a seek a Non Molestation Order to prevent the other party from using or threatening violence against you. This can be sought ex parte (ie. without notifying the other party) if there is a risk of harm if the other party receives the papers seeking relief before the Order is in place for protection.

We could also seek a Power of Arrest if there has been violence which is likely to recur. If granted, an Order is personally served on the other party with a copy going to the Police who can then arrest the other party if it is believed the Order has been breached. Breaches of the Order may result in a fine or committal to prison.

You may also be able to seek an Order that the other party is required to vacate the home and not return to it or a defined area. However the Courts do not tend to allow these orders to be made without the other party having being served and having had the opportunity to seek legal advice and attend Court.

The Judge may not make an Order that the other party vacate for a number of reasons. The Court will not make the Order if the other party or a relevant child is likely to suffer more harm if the order is made. Consideration is also given to factors such as housing and financial considerations and the conduct of the parties. In addition, the Courts view orders ordering one party to vacate a home as a drastic measure especially if it overrides rights of ownership of the home and may prefer a scenario where you are protected by a non molestation order where both parties remain in the home but each are restricted to separate parts of the house.

Any Order will have a Penal Notice attached which confirms that if the other party breaches the Order you can apply to Court for a committal hearing. The other party is asked to "show cause" why they should not be sent to prison for breach of a Court Order. The Judge has power to send the other party to prison, impose a suspended sentence or a fine if satisfied that there has been a breach of the Order.

The Courts are able to accept an Undertaking from the other party if they are prepared to promise not to use or threaten violence and to agree to live in specified parts of the home or vacate it altogether. Making this promise has the same effect as a Court Order but does not require the other party to accept that the allegations are true. The undertaking cannot carry a Power of Arrest and therefore may not be acceptable but if breached could be enforced in the same way as a Court Order.

If a property is jointly owned by cohabitees then a "Trust of Land" arises. In a dispute either co-owner could apply to the Courts for an Order for the property to be sold. However the Courts do have discretion to postpone such a sale if this is against the purpose for which the property was bought. If, for example, there are children involved then it may be that the sale will be postponed and the children thus permitted to continue to live in the property until they finish their education.

If the property is owned by only one of the cohabitees then the other cohabitee may be able to claim an interest in the property if:-

Each case is usually different and the merits of a claim will depend on the specific facts and are governed by the Trusts of Land and Appointment of Trustees Act 1996.

If a couple has been engaged but not married they can ask a Court to seek a Declaration as to the ownership of property which could include land, shares and cash. This is covered by the Married Women's Property Act 1882.

Sometimes a Pension Scheme allows cohabitees to make a claim if they are nominated as the beneficiary. However this will depend on the precise rules of the particular scheme. It is important to ensure that such nominations are kept up to date as a cohabitee would have considerable difficulty making any sort of claim if a former cohabitee or other person was still recorded as the nominated beneficiary.

If there are disputes over children and/or finances, wherever possible we will encourage you to see an independent Mediator in order to attempt to resolve the dispute without the necessity of Court action. Whilst this is entirely voluntary, it is usually required before Public Funding can be granted.

access law can also offer, as an alternative to Court-based litigation, a Collaborative Approach to the resolution of child or financial matters following a relationship breakdown. Many clients find that in the long term they have a better relationship with each other as a consequence of such an approach which has a direct benefit for both themselves and any children involved.

This page last updated 3 - Mar - 2008
Author: G. L. Hewstone