FAQs

In an ideal world, when couples separate they would be able to let bygones be bygones, move on with their lives and have the separation that celebrities and lifestyle bloggers always preach about – amicable.

But in the real world, it is not always possible to have an amicable separation. There might be conflicts about the reason for the separation, about the children, about finances, about anything.

Especially where there are children involved, there is likely to be a long-lasting connection to your ex-partner. You may both have parental responsibility for the child/children so will need to have communications with that person, no matter how unpalatable that might seem.

If your ex-partner is sending threatening text messages, then the first port of call should be to ask them to stop. This answer cannot cover every topic of potentially threatening messages, and there are shades of grey to consider, but if you feel like you are receiving threatening text messages – or messages via another medium, such as emails, letters, phone calls etc – you should ask them to stop in the first instance.

If the messages continue unabated, then you should consider applying for a non-molestation order. A non-molestation order restricts what the person against whom the order is made is able to do. The standard order includes the following:

“9. The respondent [that is, the person who is sending the threatening messages] must not use or threaten violence against the applicant, and must not instruct, encourage or in any way suggest that any other person should do so.

10. The respondent must not intimidate, harass or pester the applicant, and must not instruct, encourage or in any way suggest that any other person should do so.
11. The respondent must not telephone, text, email or otherwise contact or attempt to contact the applicant, [except for the purpose of making arrangements for contact between the respondent and the children of the family] / [except through [his]/[her] solicitors [insert name, address and telephone number]].”

You may be concerned that your ex is not going to abide by the terms of an order, given the history of your relationship. A non-molestation order often comes with a power of arrest; if the person against whom the order is made breaches the order – that is, does something they are prohibited from doing – then they ultimately risk being arrested. A Non-molestation order can therefore give you that protection against receiving threatening or abusive messages.

Another alternative, if you have to have some contact with your ex for the sake of child arrangements, is to use a communications app such as My Family Wizard. These apps record the conversations and are helpful if you need to show to a court the type of language that is being used.

If you feel like you and/or your child are at immediate risk of physical harm, call 999 without delay.

It is the sad reality that we live in a world where incidents of domestic abuse are far to common place. Statistics show that domestic abuse will affect 1 in 4 women and 1 in 6 men in their lifetime. Notwithstanding those genuine cases, there are those who lie and fabricate incidents of abuse maliciously and obtain the protection of the Court when it is perhaps unjustified. 

If you are a victim of abuse, there are various ways in which you can protect both yourself or a child from further threats of harm and / or physical violence. One of those ways is to apply to the Court for a Non-Molestation Order.

What is a Non-Molestation Order?

A non-molestation Order (or injunction as commonly known) are protective Orders that are made by the Court to eliminate the threat of abuse against a person or a child. The Court has the power to make Orders that restrict or prohibit someone from behaving in a certain way, by way of example, the Court could stop someone from sending abusive communications to another. It is common for such Orders to last a period of 12 months but the Court does have the power to make a Non-Molestation Order for a longer. 

Who can apply for a non-molestation order?

You must be an ‘associated person’ in order to apply for a Non-Molestation Order under the Family Law Act 1996. In summary, those who can apply to the Court for a Non-Molestation Order under the Family Law Act are as follows:

1. Someone who you have been in a relationship with
2. A family member
3. Someone who you have previously lived with
4. Someone who you have a child with

So, what can you do if you have been served with a Non-Molestation Order?

Being served with a non-molestation Order be a former partner or a relative can be very distressing. You may read the documentation and wholly disagree with its contents. So, what can you do?

1. 1. You can accept the Order – If you agree with the reasons as to why the Order has been made then you can simply ‘do nothing’ and accept the Order that has been made by the Court.  Even if you do not agree with the reasons as to why the Order was made, you can still accept that an Order should remain, yet it could be stated clearly that you only accept for an Order to be made on a strictly no admissions basis. This in effect is you saying that although you do not accept the allegations that have been made against you, you do not wish to challenge the making of the Order. There are a number of reasons as to why you may adopt such an approach.
   2. You can defend the Order – Having been served with an Order and Application in support, you may mistake your former partner to be JK Rowling, as the allegations that have been relied upon may be nothing but fiction. In those circumstances, you may wish to defend the Order. By seeking to defend the Order, you are in essence that you do not accept the allegations that have been raised and you do not accept that it is necessary for a Non-Molestation Order to be made. In circumstances, where you would wish to challenge or defend the making of a Non-Molestation Order, you will be given the opportunity to collate and file your evidence in response, following which the matter will be listed for a Court hearing where ultimately the Judge will decide as to whether a Non-Molestation Order is necessary. 
   3. You can offer an Undertaking in exchange for the making of a Non-Molestation Order – An Undertaking is a solemn promise that you can give to the Court in respect of your future behaviour. If the Court were willing to accept an Undertaking from you, then you could promise to the Court that you would not do certain things. An Undertaking is offered in exchange for an Order and therefore no Order is made. If you offer an Undertaking in exchange for a Non-Molestation Order and you are found in breach of that Undertaking, then you may be found in contempt of Court.

If you have been a victim of domestic abuse or have been served with a non-molestation order then it is in your interests to seek specialist legal advice. 

If you are being abused and you cannot afford to pay a solicitor, you may be eligible for legal aid if you have evidence that you or your children have been victims of domestic abuse or violence and you cannot afford to pay legal costs.

Legal aid is a government scheme which helps victims pay for legal advice and help, representation and/or family mediation. Sometimes it can also pay for things like an expert’s opinion or court fees.

The evidence must show that you are or are at risk of being a victim of domestic abuse or violence from the other party in the case arising from a family relationship between you and the other party.

To claim Legal Aid, you must make an application to the Magistrate’s Court and certain criteria must be met. The criteria is usually based on a person’s financial circumstances, so it considers household income, outgoings, capital and equity. If you are claiming certain benefits such as Jobseeker’s Allowance (JSA), income support or a guaranteed pension, you automatically pass this test and are eligible for Legal Aid. That said, if you and/or your partner receive an income (other than benefits) over a certain amount you will not be qualified for Legal Aid.

There is a high threshold to meet the legal aid eligibility criteria. There is a three-part test:

Means assessment

This focuses on your income and assets. If you are on Universal credit, you will automatically satisfy this element. If you are working, you will be expected to pay a lump sum or a monthly contribution to your legal aid. This monthly sum will be calculated during the application.

Merits assessment

This will assess whether there are legal merits to your case. For example, the Legal Aid Agency will be unlikely to fund a case where there are no reasonable prospects of success.

Evidence of domestic abuse 

In addition to the means and merits test above, ‘gateway evidence’ is needed showing that you are a victim of domestic violence from the other party to the proceedings. You will need to provide documentary evidence from an independent person such as a Doctor, Support Worker, Social Worker. Unfortunately, your word about what you have suffered is not enough. The law states that you need evidence to prove what you have been through. The letter must follow a certain format and the Legal Aid Agency will only accept this evidence in this format.

Under the Family Law Act 1986, if you are subject to domestic abuse, you can apply for an injunction to protect yourself and in some cases your children also.

There is no specific definition of domestic abuse. It can be when someone close to you, often a partner or spouse causes you physical, sexual, financial or emotional hardship. It is a misconception that in order for you to be categorized as being in an abusive relationship, there must be physical violence. In many cases there is no physical violence; instead, there is psychological and emotional abuse.

Domestic abuse can take many forms. Other than physical violence and threats of violence, you may feel intimidated by things that are said to you, or the manner in which you are treated. You may feel controlled and prevented from spending time with friends and family. Abuse can be verbal; you may feel belittled by your partner at home or in front of others.

In some instances, a telephone call to the police or help in seeking refuge to a safe environment will provide sufficient protection to a victim of domestic abuse. For others, an application to the court for an injunction order will be required.

You can apply for the following orders:

1. Non Molestation Order

This is an order that prohibits your partner or spouse from using or threatening violence against you or your children, or intimidating, harassing or pestering you.

2. Occupation Order

This is an order that requires your partner or spouse to leave the home. Orders can be made to suspend an individual’s right to occupy the home and, in some circumstances, exclude the individual from a defined area around the home

Be prepared, if you are applying for an Emergency Order or an order on notice to prepare a detailed statement in support. McAlister Family Law can assist you with this.

The court can grant such orders urgently on the day the application is issued. Such emergency orders will often be applied for without notice to your partner. This means that your partner will not have advanced warning that you are going to court to address any immediate safety concerns.

A Non Molestation Order or an Occupation order can be granted from anywhere between 6-12 months in duration.

It is important to bear in mind that breach of a Non Molestation Order is an arrestable offence and every Non Molestation Order carries a Power of Arrest.

If the court does not grant an emergency hearing or you apply, on notice, to the respondent in the case, then you will usually get a hearing within 7-14 days. You will be required to return back to the court for a further hearing once the respondent has been given notice of the order made. If matters cannot be agreed on the return hearing date, the court will usually set a Contested Final Hearing to determine the matter.

If you are in immediate danger then you are advised to report the abuse to the police so that emergency help can be provided to you.

There are various ways to obtain protection against a violent spouse. Notably, a victim is able to apply for a Non-Molestation Order and/or an Occupation Order.

A Non-Molestation Order is an injunction which offers protection to family members, including children and individuals in a domestic relationship, against the use of violence or other forms of molestation. It also protects against threats of violence, intimidation, harassment or pestering both in person and through other means such as text messages and phone calls. An order can prevent the abuser from coming within a certain distance of the victim, the home address or even attending a victim’s place of work. An order will also prevent an abuser from instructing or encouraging others to do any of those actions.

To make an application for a Non-Molestation Order, the victim and abuser must have “association” under the Family Law Act 1996. This includes those who are or were married, civil partners, living together or partners. It also includes relatives and in-laws along with those who have a child together.

Once granted, a Non-Molestation Order is usually in place from 6-12 months, but this can be extended.

A Non-Molestation Order can also be applied for without your spouse/partner’s knowledge. This is known as an ex-parte application.

A breach of a Non-Molestation Order is a criminal offence, and the police have the power to arrest anyone in breach.

On the other hand, an Occupation Order regulate occupation of the family home and defines who can live there. Abusers can be excluded from the home whilst the victim and the children remain, or they can be excluded from certain areas of the home. An Occupation Order usually lasts for a period of 6 months, although this can be extended for an indefinite period in some instances.

There are also many other alternatives forms of support, like for example charities and support groups which victims can contact. Some of these organisations are as follows:

• National Domestic Violence Helpline – 0808 2000 247
• National LGBT+ Domestic Abuse Helpline – 0800 999 5428
• Refuge Helpline – 0808 2000 247
• Samaritans – 116 123
• The Men’s Advice Line – 0808 801 0327
• Women’s Aid
• Victim Support
• Domestic Violence Shelters

In cases where a victim is in immediate risk of harm, they should call 999 straight away. Domestic abuse is a crime, and the police remain equipped to deal with these situations and offer help.

If your ex-partner refuses to leave the house and they are subjecting you to domestic abuse, there are a number of things you can do to protect yourself and your right to occupy the home.

Occupation Orders and Non-Molestation Orders

You can make an application to court for an occupation order which will protect your right to live in the house. It will also ensure your ex-partner is forced to leave the house if they will not go and that they cannot return if they have already left. Occupation Orders are enforceable, which means if your ex-partner breaches the order, you can take them back to Court and they may face serious consequences for their actions such as a fine or even imprisonment.

A Non-Molestation Order will prevent your ex-partner from continuing their abusive behaviour towards you and will stop them intimidating, harassing, or using/threatening violence against you. It will generally be put in place for a certain length of time, for example, one year. As with Occupation Orders, Non-Molestation Orders are enforceable and the penalties for breaching this type of order are very similar to those explained above.

A promise to the Court

Occasionally it can be agreed that rather than a Non-Molestation Order or Occupation Order being imposed, the abusive ex-partner will instead provide an “undertaking” that they will not attend the property or come within a certain distance of the property. An undertaking is a promise made to the Court that you will or will not do a certain action and we can advise you on whether this is sufficient in your specific situation. If an undertaking can be agreed, this will often happen at the first hearing which means you do not have to go through the stressful experience of a further contested hearing.

Protecting yourself

If you are suffering domestic abuse and you feel you or your children are at immediate risk of physical violence, you should always call the police and ensure the safety or yourself and any children involved. Do not stay in the property if you believe the lives of you and your children are at risk there. The above orders should only be sought once your immediate safety is secured.

This is a common question asked when a co-habiting relationship or marriage comes to an end and your ex-partner has already moved out or you want to keep them out of the house. There are a few factors you will need to consider before deciding whether or not you can or should do this however, such as who owns the property (is it jointly owned or in your sole name), the circumstances leading up to you wanting to do this, and any other alternative solutions that may be available to you.

Married Couples

If you are married to your ex-partner but the property is owned in your sole name, your ex-partner can secure a Home Rights Notice on the property which will protect their rights of occupancy to the family home. However, if they have already moved out of the property, you should be able to enjoy your right to privacy without worry that they will return and cause problems for you. You have a right to privacy and this should not be interfered with by your ex-partner once they have left the house.

If the property is held in your joint names, you will need your ex-partner’s permission to change the locks whether they have already moved out of not. Neither of you can lock the other one out.

Unmarried Couples

If you are unmarried and the property is in your sole name, your ex-partner cannot secure Homes Rights against the property. Home Rights applies exclusively to married couples, meaning you can change the locks without getting your ex-partner’s permission.

As with married couples, if the property is held in your joint names you will need their permission to change the locks.

How we can help you?

If your ex-partner wants to come back to the property, we can write to them explaining that you are entitled to privacy and reasonable enjoyment of the home without interference from them. If you own the home jointly and your ex-partner has good reason to visit the property i.e. to collect personal items, we can ask them to give us notice of when they intend to return and providing the notice they give is reasonable, we can arrange for your ex-partner to come back to the house at a time when you are either not there or at a time when you/an independent person are there if you are uncomfortable with them returning without supervision. Legally, your ex-partner is entitled to visit a property owned in your joint names but your right to privacy is very important and should be respected once they have left the house.

If the property is in your sole name but your ex-partner wants to come back to collect personal items, again, we can write to them and arrange this. However, they have no legal right to access the property again and if they attempt to do so without your permission you should notify the police immediately. You can also talk to us about seeking an injunction against your ex-partner to stop them from attempting to come back to the house in the future.

Before the law changed in April 2022, although rare, it was possible for an individual’s partner to be named in a divorce petition. This could happen where there was evidenced “adultery” (which was then one of the “facts” that could be relied upon to evidence to the court that a marriage had irretrievably broken down).

However, in April 2022 the old law was completely abolished, with the “facts” needing to be relied upon to show irretrievable breakdown of marriage being removed.

Under the new system, within a Divorce Application (as it is now named), individuals simply need to confirm to the court that there has been “irretrievable breakdown” without having to explain why that is the case.

This means that even if a person’s spouse believes the breakdown of the marriage to be because of there being a new relationship, there is no longer the opportunity to state this within the Divorce Application, or name the individual involved.

The whole purpose of the new system was to reduce acrimony within divorces, preventing to-ing and froing on the wording of petitions which was increasing the emotional temperature and costs unnecessarily.

Is having a new partner relevant to the financial matters? 

The existence of a new partner can be relevant to the financial matters more generally. This very much depends on the circumstances of each and every case. Relevant considerations would be how stable the relationship is, whether the new partner is living with the individual and if so, whether they can provide an additional financial resource that is realistically available (or potentially whether the new partner is even a financial drain) on their resources.

The existence of a new partner does not mean that there will be less of a right to a fair outcome upon divorce. The court has to assess each and every case on the basis of fairness and need. As such, the court would not expect new partner to financially support somebody at the expense of their former spouse, particularly when there are children and where there are assets/income that can be used to meet those needs.

Within court proceedings, there is an obligation for full and frank financial disclosure. If somebody is living with their new partner (cohabiting) then there is an obligation to disclose details of their partner’s income and assets but only as far as “they are known”. To that extent, a partner could be referred to within the court process/financial matters more generally.

“High net worth divorce” is a term that is often used where a divorcing couple have high value assets, but what does this really mean and what impact does this have when looking at a fair financial settlement on divorce?

For a divorce to be considered high net worth, the total value of the couple’s assets is usually more than they require to meet their individual financial needs. Need is an elastic concept. At its most basic it is having somewhere to live and money to live on. The more money a couple have the more generously need is likely to be interpreted. In many divorces the couple’s standard of living reduces when they divorce, as they cannot afford to buy two houses of the same value of their matrimonial home and they cannot afford to fund the same outgoings that they used to, as they are having to fund two households. In high net worth divorces this is not the case, as the assets are usually more than enough to allow both spouses to carry on with the same standard of living after they divorce.

If the assets are greater than the couple’s needs, who retains the balance of the couple’s assets once their respective needs have been met? If the couple have been married for many years and all the assets were acquired during their marriage, it may be that an equal division of all the assets is appropriate. However, an equal division is not appropriate in all divorces, and having more assets than are required to meet the couple’s needs will allow various legal arguments to be run to show why not all assets are matrimonial and therefore why one spouse should receive more than half of their total net assets. These legal arguments include the following:

• Pre–acquired assets – where one spouse brought significantly greater assets into the marriage than the other, it is possible to argue that some or all of the assets that they had at the time of the marriage should be ringfenced and not form part of the matrimonial pot which is divided between the couple. This argument is more likely to succeed if the assets that were brought into the marriage were not “intermingled” with other matrimonial assets. For example if one spouse has an investment property that they owned before the marriage and the other spouse has never contributed to it, this is likely to be considered non-matrimonial. Whereas savings that one spouse had at the time of the marriage, which were used to fund the purchase of a property jointly owned by the couple, have been intermingled and are more likely to be considered matrimonial.
• Post separation accrual – this is where one spouse has acquired assets after the couple separated. This does not include the latent growth in assets after separation, for example a property that has increased in value after separation due to an increase in value in the property market in general. This growth in value is likely to be considered matrimonial. However, it could include a new business started by one spouse after separation, which now has a significant value. If it is considered non-matrimonial it is likely to be excluded from the matrimonial pot.
• Inherited assets/gifts from family – if one spouse has received a significant inheritance or been gifted significant assets during the marriage, a judge can decide to ring fence those assets, treating them as non-matrimonial and leaving them out of the matrimonial pot that is divided between the couple. Again a judge is more likely to do this if they have not been intermingled with matrimonial assets.

High net worth divorce cases often include more complex assets structures, such as companies and trusts. The assistance of other professionals, such as accountants, is often needed to value business assets and to calculate the tax payable on the disposal of the assets, as the court will look at the net value of the assets, when deciding what a fair settlement is.

The date of separation is often determined by the date you and your spouse/partner began living separately. Often, this is when you stop living together in the same home. Sometimes, however, it is not possible to have separate homes and you continue to live together under the same roof. If this happens the date of separation is likely to be classed as the date you began living separate lives under the one roof at home, such as eating meals separately, sleeping in separate bedrooms, no longer doing one another’s laundry etc. 

You may never wish to formalise or legalise your separation but if you do, you have some options available to you, which are:

1. Separation Agreement
2. Judicial Separation
3. Divorce

A Separation Agreement is an agreement setting out the terms of your separation. The issues often addressed in a Separation Agreement are arrangements for the children, financial issues such as who will occupy the family home and who pays the bills, and sometimes even arrangements for the family pet(s). The date of separation can be included within this document. Be aware, a Separation Agreement is not legally binding, but it would carry weight if certain criteria are met. 

Judicial Separation is a legal way to formally separate. Judicial Separation is often chosen where you do not wish to get divorced (for religious or personal reasons), you have been married for less than a year (and so cannot issue divorce proceedings yet) or you just want time to work on the marriage.  An application would be made (either jointly or a sole application by one spouse) to state a Judicial Separation is sought. An Order of Judicial Separation is then made once the Court is satisfied the criteria has been met. At the conclusion of Judicial Separation proceedings, you are legally separated but you do remain married to your spouse. To formally end the marriage you would need to issue Divorce proceedings. 

Divorce proceedings legally end the marriage once finalised.  An application would be made (either jointly or a sole application by one spouse) to state the marriage has irretrievably broken down. Two orders are made (Conditional Order and Final Order) in the proceedings which takes between 6-9 months usually. Once the Final Order is granted, the marriage is legally dissolved. 

Whilst adultery may be the reason for instigating divorce proceedings, the law changed in England and Wales on 6 April 2022 removing the ability to “blame” your spouse for the breakdown of the marriage. 

Prior to 6th April 2022 the ground for divorce was that your marriage had irretrievably broken down based on one of five facts namely; behaviour, adultery, 2 years separation, 5 years separation or desertion.

Now you no longer rely on a “fact” in the divorce application and instead, you have to confirm in a statement that your marriage has irretrievably broken down. This is all that is required (along with other general information about you, your spouse and the marriage) in the divorce application to start the proceedings. The Court simply must be satisfied your marriage has broken down irretrievably. 

The change in the law removes the ability to state within a divorce application that adultery has been committed by your spouse.  This can be distressing when your spouse has had an affair that led to the breakdown of the marriage but, in the court’s eyes, more often than not the reason for the divorce has no bearing on any other issues arising such as arrangements for the children or financial matters. 

The short answer to this question is no. In and of itself, an Islamic marriage contract or ‘Nikah’ is a religious marriage ceremony binding under ‘Sharia Law’ only. Whilst you, your friends and your family may consider that you are married after an Islamic ceremony, a common misconception is that such a ceremony is legally binding in England and Wales as well. If you have undergone a ‘Nikah-only ceremony’ and have not registered your marriage in the UK through a civil ceremony, then you are considered cohabitees only in the courts of England and Wales.

There are limited exceptions to this rule. If for example you married in a mosque, which has been registered for the solemnization of marriages in England and Wales (section 41 of the Marriage Act 1949), then the marriage may be considered legal. To clarify whether your mosque is registered you can search government records of the places of worship registered for marriage, which can be found here: – https://www.gov.uk/government/publications/places-of-worship-registered-for-marriage

Alternatively, if you are a British national who has travelled overseas and have married via an Islamic marriage ceremony, your marriage may be considered legally valid if certain criterion has been met within the specific country you have travelled to. Your marriage will be recognized in the UK if both of the following apply:

• You have followed the correct process in the country where you got married for it to be legally recognized. For information on what specific procedures need to be met in the country you have married, visit: https://www.gov.uk/marriage-abroad; and
• The marriage would be allowed under UK law. Please see the governments explanatory note on allowable marriages here: https://www.gov.uk/marriages-civil-partnerships

So, what does this all mean practically? 

If you have validly registered your Islamic ceremony (through a civil ceremony or other method detailed above), upon separation you will need to follow the divorce process for both Islamic and civil divorces. All financial matters and legal matters should be addressed during the civil divorce process, as an Islamic Sharia Council does not have the power to legally decide how your assets are to be settled.

In circumstances where the Islamic ceremony has not been validly registered, on separation as a cohabitee you will not have the same automatic rights as a couple in a civil marriage. As there is no such thing as a ‘common law spouse’ within the courts of England and Wales, any such any claim to ‘financial remedy’ for a cohabiting couple will largely be limited to only claims against property in which you have a legal or beneficial interest in. Such an application would be a civil claim brought under the Trust of Land and the Appointment of Trustees Act 1996, which is far more limited in its application. Please see our blog on this topic for further information on how assets are dealt with upon separation for cohabiting couples: When unmarried couples split: what happens to your property?.

Unfortunately as much as 60% of married Muslims in the UK have fallen under the misconception that their Nikah will be recognised in the UK and have not registered their marriage, this widespread lack of awareness can often leave people in the Muslim community very financially vulnerable upon separation, particularly women. Separations can at the best of times be difficult to navigate, so if you have concerns about your position upon separation and question whether your Islamic marriage is indeed valid in the UK, please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

In short, the answer is yes. Mediation can be an effective and efficient way of reaching an agreement amicably.

Usually, individuals who wish to take part in mediation are hoping and wanting to reach an agreement and relatively quickly.

A mediator can help parties cut through issues, communicate and facilitate discussions with the overall aim of reaching an agreement. The Family Mediation Council outlines that typically, it will take between 3 – 5 mediation sessions to reach an agreement (with recommendations of at least 1 week between each session).

The charges from mediator to mediator do vary, but inevitably overall costs are usually cheaper than going to court because:

1. Agreements tend to be reached after a number of weeks, whereas the court process would likely stem over a number of months (or even years in particularly complex cases).
2. Legal advice is required only at the point of reaching a settlement and can be limited to:

• Advising on the ‘fairness’ of the agreement and the legal implications of it.
• Drafting the order required to turn the agreement into a legally binding consent order (which can be dealt with a lot of the time with a “fixed fee”).

3. The overall cost of the court process does however depend on how the individual chooses to fund their court proceedings and the level of legal advice and input they require (referred to below).

Individuals who are on a low income or not working may also qualify for legal aid to assist with mediation costs generally (to include mediation to discuss financial issues).

Further, the government in March 2021 also introduced a scheme to help families more generally to fund the cost of mediation by providing a £500 voucher towards their mediation costs. The voucher is available for mediation relating to:

• A dispute/application regarding a child;
• A dispute/application regarding family financial matters when a party is also involved in dispute/application in relation to a child (and many people of course fall into this category).
• If, however mediation sessions are required solely in respect of financial issues the voucher is not available and the mediator’s costs will need to be privately funded (unless the individual qualifies for legal aid).

More information about the funding of family mediation can be found here:

https://www.gov.uk/guidance/family-mediation-voucher-scheme

https://www.gov.uk/legal-aid

Court Proceedings

Sometimes, court proceedings are inevitable. They can however become costly very quickly and can run into many thousands of pounds, particularly when emotions are running high and when issues become particularly acrimonious.

It is recommended that legal advice is sought throughout (to assist in drafting documents, statements, and to ensure consistency of evidence) with legal representation usually required at court hearings from solicitors or barristers.

Each case is different and at the outset of a case (and at regular intervals during it) a client’s legal representative will provide a realistic estimate of costs to each stage of the process and provide advice as to how best to keep costs proportionate to the issues in the case.

Sometimes the very act of issuing a court application may be enough prompt the other party to engage and an agreement can be reached at any time. So it’s not every case that costs become substantial or protracted.

In addition, if individuals choose not to instruct a solicitor/barrister and they represent themselves in court, then costs will be limited to any court fees required (which usually are paid at the beginning of the case only). All options should be discussed between a client and their legal representative at the outset of the case.

Legal aid is no longer available for financial proceedings generally (even for low-income families). It is available in some circumstances including cases of domestic violence and in children cases where there has been domestic violence or there are care proceedings. Financial proceedings do, therefore need to be privately funded in almost all cases.

On 6th April 2022, the ‘’no-fault’’ divorce was introduced. There is only one ground for divorce which is that the marriage has irretrievably broken down. Under the new divorce law, there is no longer any need to assign blame and you do not need to provide the court with an additional reason for the divorce such as: adultery; unreasonable behaviour; desertion; separation for more than 2 years; or separation of more than 5 years. The purpose of this change in divorce law is to make divorce easier, reduce conflict and make the process less acrimonious.

When can you get a divorce? 

You have to be married for one year before you can start divorce proceedings

Divorce process

You need to start divorce proceedings to bring the marriage to a formal end. You can either make a divorce application on a sole basis or a joint basis.

The application is submitted online via the online divorce portal. The Court requires a scan of your original marriage certificate. There is also a court fee payable when making the application

Once an application has been made for divorce and the other spouse has confirmed to the court that they have received the divorce application, there is a ‘’cooling-off’’ period of 20 weeks from the date of the divorce application. Only when that 20-week period has elapsed can you confirm to the Court that you wish to proceed with the divorce and request the next stage in the process which is known as a Conditional Order.

Once that confirmation has been provided, the Court will issue a ‘’Conditional Order’’. You are still married at this stage, but the Conditional Order is important as only once it is granted does the Court have the power to approve any financial agreement

6 weeks and one day after the Conditional Order is made the Final Divorce Order can be applied for. Once the Final Divorce Order has been made you are officially divorced. Any financial order becomes enforceable once the Final Divorce Order is granted.

There is now no option to defend a divorce, save for exceptional circumstances (for example, the Court not having jurisdiction to deal with the matter or the marriage not being valid in the first place). This means that, even if one spouse does not agree to the divorce, the Court will grant the divorce regardless, on the basis that one spouse has confirmed to the Court that the marriage has irretrievably broken down. However, you have to prove that the other spouse has received the divorce application.

How much does divorce cost? 

The court fee for starting a divorce in England and Wales is £593. You might be able to pay a reduced court fee if you are on a low income or receive certain state benefits.

For advice on how to get on divorce, please contact a member of our Team.

The legal costs involved with divorce are, rightly, a concern for many people when considering whether or not to get divorced. In terms of the actual divorce suit, there is usually a court fee of £593.00 payable on filing the application, unless parties can claim an exemption from paying the costs. This fee is either paid directly to the court by a person filing the divorce petition or, if that person is instructing a solicitor, then the solicitor might often pay the divorce fee using monies from their client that are held on account.

In terms of legal representation for the divorce suit, solicitors offer a wide range of options from fixed-fee divorce packages to charging based solely on a solicitor’s hourly rate.

At McAlister Family Law, we offer a fixed fee divorce package of £550 plus VAT (£110) and the Court fee of £593. As such, our Divorce fixed fee package will cost £1,253. We also offer discounted rates for Police officers of £400 plus VAT (£80) plus the court fee of £593. As such, our discounted Divorce fixed fee package for Police officers (serving or retired) will cost £1,073.

It is important to note that the divorce suit, and matters around the matrimonial finances (i.e. the family home, cash savings, pensions etc.) and arrangements for any children of the family, are entirely separate to the divorce suit and will not automatically be resolved when filing an application for divorce. Issues around the matrimonial financial element of the case, arrangements for children, or other issues, will also not caught within the aforementioned fixed fee structure. Usually, matters involving the matrimonial finances and/or arrangements for children will be charged at the respective hourly rate of the solicitor who has conduct of the file(s) / matter(s). There are ways that you can minimise how much a case involving matrimonial finances, or arrangements for children, will costs.

The easiest, and most simple, way to do this is to ensure that you have communicate the instructions to your solicitor clearly and that you are organised when gathering and preparing any documents that have been requested by your solicitor, the court, or the other side. It is also possible to minimise the legal fees that you might incur by dealing with matters as amicably, and sensibly, as possible. It may be both beneficial in terms of maintaining a level of amicability, and minimising your legal fees, to attempt mediation before seeking the assistance of a solicitor when considering the division of any matrimonial assets.

Essentially, if it is possible to reach some form of agreement with your spouse in relation to the matrimonial finances and/or arrangements for any child(ren), prior to instructing a solicitor to act on your behalf, your legal costs will usually be lower than if you are instructing a solicitor to make the first suggestion of negotiations to your spouse.

A divorce in England and Wales takes at least six months. This is because there are two key waiting periods until a divorce can be finalised.

1. There is a 20-week ‘’cooling off’’ period from the date the divorce petition is applied for. Only when that 20-week period has elapsed can a spouse confirm to the court that you they wish to proceed with the divorce and request that the Conditional Order is granted. The reason for this is to give the married couple plenty of time to reflect and decide whether they want to proceed with the divorce.
2. Once the Conditional Order has been granted there is a six-week and one-day waiting period until a spouse can apply to the court for the Final Divorce Order.

With these waiting periods, the process takes a minimum of 26 weeks. However, there a number of common issues that can delay the divorce process, including: –

• If there is delay in the completely the court courts or you are having difficulties with serving the other spouse with the divorce application

• It is dependent on how quickly you are able to reach a financial agreement within your divorce. Negotiating a financial agreement can take between 6-12 months.

• Most couples will be advised not to make the application for the Final Order until a Financial Order is in place as it would bring to an end to inheritance rights which could be problematic if either spouse were to pass away before a financial agreement is reached. Divorce can also affect pension right.

People often have a number of worries when they are going through a divorce including practical, financial and emotional concerns. One of the biggest concerns for parents though is the impact that it will have upon their children and when and how they should tell them.

There is no “one size fits all” answer to this as it will depend on the ages and personalities of the child or children involved. It will also depend on the particular circumstances of the separation.

We have set out below some general guidelines, but you could also have a look at some of the books on our reading list for hints and tips on how to approach this difficult task.

Who?

Ideally parents should tell the child or children together. This might be difficult, particularly if one parent is still struggling with the idea of the separation themselves, but it helps if a united front can be presented. It can also avoid a child feeling that they are being asked to take sides.

What?

It is best to be honest with your children, but they do not necessarily need all of the details (for example if one person has had an affair), particularly if they are young. It might help to plan out together in advance what you are going to say, who is going to say it and how you might deal with the questions that are likely to be asked.

Where?

It is probably best to do it at home as you do not know what the reaction might be. There may be tears, anger or just withdrawal initially and it can be harder to deal with these away from home, particularly if you have more than one child and they all react differently.

When?

This can be a difficult decision to make. Ideally, you want to be able to set out a plan to them of how the future might look in terms of where everybody will be living, what time they might spend with each parent and so on. However, it may take time to agree on these details and in the meantime the child or children may simply work out what is happening for themselves and feel you have not been honest.

This is going to be about balance and will very much be dependent on the circumstances and the individuals involved.

How?

The situation needs to be explained as calmly as possible, with as much reassurance as possible (without trying to sugar coat) and you should avoid blaming the other parent.

It is inevitable that both parents will be dealing with their own emotions but what should be avoided, if possible, is one parent simply blurting it out without any planning and/ or without letting the other know of their intentions. This can make an already difficult situation worse.

If you have any questions about this issue or any issues relating to divorce, separation, financial matters or children please contact a member of our specialist family law team.

In short, no, you do not need a solicitor to get divorced. There is, currently, no legal requirement for people to instruct a solicitor to deal with their divorce. Many people opt to act as a ‘litigant in person’ and represent themselves within divorce proceedings, in order to save money that would be otherwise spent on legal fees. However, it is advisable to get legal advice in relation to the divorce suit, financial settlement, and other issues such as child arrangements before you start your application for divorce. It must be considered whether acting as a litigant in person, and effectively representing yourself in any future court proceedings, may prove cost-effective in the long-term.

Just because you can represent yourself within a divorce suit or financial remedy proceedings, doe does not mean that it is always a good idea. Issues around divorce are complex, especially when considering the issues of financial settlement and the potential litigation that might be needed to deal with matrimonial assets. Even if the divorce process may seem fairly straightforward, there are numerous trapdoors that need to be highlighted, and navigated, and without the assistance of a solicitor you may find yourself falling straight into one.

It is not possible to list all of the potential pitfalls with being a litigant in person, with potentially the most pitfalls being in relation to the financial element of the divorce. Without proper legal advice, and representation, many people will simply not understand what should happen to assets such the family home, or how assets such as a pension be shared. Furthermore, the division of more complex assets such as stocks, shares, and cryptocurrency, is often very complex and therefore fairly robust legal advice is needed, taking into consideration both recent caselaw and statutes. There are also possible penalties for not meeting court appointed deadlines, or not following the correct process within litigation.

Not only are family law proceedings, including divorce, financial remedy, and child arrangements, complex but they are also extremely time-consuming and emotionally draining. Instructing a solicitor can not only help navigate the complex landscape of legal proceedings, but a solicitor will also be able to offer some level of protection from the stressors of possible litigation.

When divorcing, people will often hear about mediation and will be advised to attend it to try and resolve disputes (whether for issues concerning the children or division of the marital finances).

What is mediation? Mediation is a form of what is called “Alternate Dispute Resolution” (ADR). It is aimed to help individuals resolve matters amicably, out of court. A mediator is an impartial person who is trained to help divorcing couples explore their issues; the mediator will assist the parties with communication and reaching an agreement over the specific issue in dispute. It can be an effective way to resolve issues and keep lines of communication open, so it is usually recommended where it is appropriate.

However, no one can and should be actively forced to mediate. If that were the basis of mediation in every scenario it wouldn’t be successful (as the intention of mediation is that it is a collaborative and non-acrimonious way to discuss issues and resolve disputes).

There are some circumstances though where procedurally mediation needs to have been considered and a decision made as to whether it is appropriate or not on the individual circumstances of the case.

For the purposes of actually starting the divorce process (ie preparing a Divorce Application itself) there is no requirement to attend mediation at all.

However, when individuals need to make an application to court in respect of the finances, the person bringing an application needs to discuss with a mediator whether mediation is appropriate for their case. Individuals bringing such an application need to attend a “Mediation Information and Assessment Meeting” (MIAM) to discuss with a mediator whether mediation is appropriate in the circumstances and whether the other party should be invited to a mediation session. The court, will, however want to know it has been considered as an option.

There are of course some cases where mediation would not be an appropriate way of resolving a dispute (and in those circumstances attendance at a MIAM may not even be required),

This is the case when:

1. There has been domestic violence (as this would mean that a person would have to actively mediate with their perpetrator which would be inappropriate and could put an individual at risk).
2. There is some exceptional urgency, for example if there are urgent issues which need to be determined (for example if assets need to be frozen and to attend mediation would give that person a “heads up” as to an urgent application being made).
3. There are already ongoing court proceedings.
4. Mediation has already been attempted in recent months and has broken down.

In summary, mediation can be an extremely effective tool and the advice would always be to use it as an amicable way to resolve a dispute in the first instance (unless of course there are reasons as to why it is not appropriate).

The divorce process was often criticised and maligned as being an outdated and antiquated system in the courts of England and Wales. Brought into effect through the Divorce Reform Act 1969 and later consolidated into the Matrimonial Causes Act 1973, the act enabled either party to seek a divorce following the ‘irretrievable breakdown of the marriage’. 

Under the previous system separating couples were required to prove one of five ‘facts’ to satisfy the court that the marriage had irretrievably broken down, they were: adultery, unreasonable behaviour, desertion, 2 years separation with consent or 5 years separation.

Two of the facts required parties to lay blame at the feet of the other, whilst the remaining three required parties to separate for a minimum period of 2 years. 

Could one party unilaterally stop a divorce petition under the old process?

Parties could contest petitions for divorce on the basis that they genuinely did not believe that the marriage had broken down, and that there was realistic prospect of reconciliation. Others may have also entered a defence to the divorce petition for tactical reasons be it either in connection to the children or the finances. Either way, if the party genuinely believed that the marriage had not broken down irretrievably then they had they right to defend the divorce proceedings.

A party could look to challenge the validity of a petition by contesting the fact relied upon by the petitioner, effectively looking to establish that they had no jurisdiction to bring a petition for divorce in the first place. This was best exemplified in the very public case of Owens v Owens in which Mrs Owens sought to separate from what she described as her controlling husband.

Mrs Owens was unfortunately unable to proceed with her divorce as the Supreme Court refused the petition on the basis that they considered Mr Owens behaviour did not meet the threshold for an unreasonable behaviour petition.

How are divorces treated today, and can they still be stopped?

The case of Owens v Owens highlighted the inadequacies of the previous divorce process. Through the introduction of the no fault divorce on 6th April 2022, the court looked to avoid scenarios that faced by Mrs Owens. In removing the need to apportion blame, or to ensure parties were required to wait at least 2 years to separate, a modern and amicable process was envisioned.

However, through removing the apportionment of blame the court has impacted a parties’ capacity to contest a no-fault divorce application. As there is effectively no fact in which to contest a party can no longer contest a divorce or dissolution unless there is a jurisdictional issue.

Can you stop a divorce if you reconcile?

A question often asked is ‘if I have changed my mind about divorce and wish to cancel the proceedings, can I?’ The short answer is yes, provided both of the parties agree.
If you reconcile with your civil partner or spouse, at any point in your proceedings, even after the pronouncement of Decree Nisi (the middle stage of a divorce) you can request that the that court to rescind the divorce application/petition. Unfortunately, if for whatever reason your reconciliation has not worked out after application has been rescinded, you will be required to issue a new application for divorce and effective start the process from the beginning.

Once Decree Absolute or a Final Order has been granted (the final stage of a divorce) unfortunately your cannot cancel your divorce as the marriage has already been brought to an end. You are however free to remarry your significant other should you wish to become spouses again.

Should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

Absolutely! In fact, you are very much encouraged to do so.

The benefits

Coming to an agreement with your former spouse without going to court can have a wide range of benefits. One of the first, which should not be underestimated, is that you avoid the stress of proceedings which can often increase animosity. Secondly, someone signs up to an agreement (however much they may feel that they have compromised), it is more likely that they will stick to its terms than if an order if imposed upon them by the court. There are obviously legal routes that can be taken if someone does not abide by a court order, but avoiding the stress and associated costs is a huge benefit.

Further, you can save a lot of money by coming to an agreement with your former partner. The fees involved with financial remedy proceedings are often substantial. Your solicitor will work with you to keep them as low as possible, but the matrimonial pot (what is available to be split between you and your ex) will be reduced.

How do we do it?

You might be fortunate enough to be able to sit down with your former partner and agree how you should divide your assets with no outside input. If not, hope is not lost. Mediation is an option that the courts are very keen for more people to take. This involves a qualified, neutral, third party sitting down with you both (either together or one at a time) and facilitating discussions. You will most likely be asked to bring financial information with you to the sessions. The mediator will then be able to offer some guidance of what the court would consider if they were asked to intervene. Sometimes the simple presence of a third party can help keen discussions on track.

A popular alternative is negotiations through solicitors. Solicitors can guide you through a disclosure process (working out what is in the pot) and negotiating settlement (splitting it). This often follows the same structure as the court process but without the costs of attending hearings.

If mediation and negotiations through solicitors do not work and you still want to avoid the court process, there are other forms of ADR (Alternative Dispute Resolution). One of these is arbitration. This is a lot more akin to the court process but has the benefit of a much swifter resolution. You and your spouse would need to agree on a qualified arbitrator who would then hear evidence from you both before deciding how the assets should be divided. An arbitrator’s decision is binding.

What do we do when we’ve agreed?

When you and your spouse have reached an agreement, it is very important to have it drawn up into an agreement and approved by the court. This means that the agreement is enforceable and that all rights/obligations you and your former partner had towards each other by virtue of your marriage are brought to an end subject to the contents of your agreement.

Completing the paperwork for the court can be a little tricky. There is a form to fill in that sets out all of the information that the judge reviewing your agreement needs to make sure that it is broadly fair. They will not dive into the minutiae of the agreement, but they do check to make sure that one party is not being left significantly worse off than the other. It is sensible to take expert advice on turning your agreement into a court order and filling the relevant paperwork so that you have peace of mind in the future that what you both intended is what the order says.

In a nutshell, yes you can. There may well circumstances that necessitate separating couples living together whilst going through a divorce and this has never been more prevalent then in recent times, going through the covid pandemic and entering a cost-of-living crisis.

There can also be a myriad of reasons why someone may want to continue living with their spouse whilst divorcing, be it wanting to save money whilst separating to wanting to maintain a semblance or normality, to try and lessen any upheaval for children.

Previous Divorce System

Living arrangements were a lot more relevant under the old divorce system. Whilst the basis for divorce remains the same being the ‘irretrievable breakdown of the marriage’, the court have dispensed with the necessity to lay blame at one another’s feet.

Previously, separating couples would have to satisfy one of five ground to prove that a marriage had indeed irretrievably broken down. When looking to establish one of the grounds, periods of cohabitation would have a bearing on whether it could be relied upon.

Adultery: If you cited adultery as the basis of your divorce and continued to cohabit with your spouse for a period of 6 months, or several periods that totalled six months, you could not rely on this ground.

Unreasonable behaviour: If unreasonable behaviour was cited, justification would need to be given to the court as to why you continued to live with your spouse during this period.

2 years separation with consent/ 5 years separation: Parties would need to satisfy the court that they have been ‘living apart’. Whilst separating spouses could look rely on this ground whilst they lived under the same roof, they would have to satisfy the court that they had completely separate lives, this would be to the extent that they had separate laundry, eating and sleeping arrangements. This was best exemplified in the case of Hollens v Hollens.

Desertion: – To rely on this ground, a party would need to prove to the court that they had been abandoned for a period of no less than 2 years. This could not be the case if you were still living under the same roof.

Current Divorce System

After the introduction of no-fault divorce on 6th April 2022, the courts of England and Wales have reimagined a system that was over 50 years old. In removing the necessity to say that your spouse’s behaviour was the reason for the marriage ending, separating couples can now take a much more amicable approach to their divorce or civil dissolution. Through removing the five grounds cited above, parties simply need to confirm that the marriage has irretrievably broken down within the application for divorce.

The change in the system now also allows parties to make joint applications for a divorce to facilitate an amicable separation, as a result whether you live under the same roof or not at the point of separation no longer holds any bearing with the court.

Should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

Different countries have different laws and regulations in relation to divorce. This can range from the grounds for divorce (i.e., what you need to prove to the court to be entitled to a divorce) to financial provision made on the divorce. For this reason, it might be advantageous for you to divorce in one country rather than another. Sometimes there are disputes around which country should deal with a divorce as there may be financial implications that one spouse wants to avoid.

If you want to divorce in the UK, you will need to consider your domicile and habitual residence.

Domicile

Domicile basically means the country you have the most ties with. You can only have one domicile at a time. Everyone starts off with a ‘domicile of origin’ which is where their father was domiciled when they were born (if their parents are married) or their mother (if not or if the married father died before their birth).

You can change this is one of two ways, the first being by establishing a domicile of choice. This is achieved by permanently moving to another country and establishing roots there. Exactly what is required is not clear cut so it is important to take expert advice if this might be an issue in your case.

The third route to establishing a domicile is the domicile of dependency. This really only applies to children – their domicile will follow their relevant parent’s domicile. If the child becomes and adult and leaves the country, their domicile will revert back to their domicile of origin until a domicile of choice is established.

Habitual residence

Habitual residence is a lot more fluid than the concept of domicile. It is based on the concept of a ‘centre of interests’. Many things work together in establishing a centre of interests e.g. where someone works, where they own property, where children go to school etc.

What is needed to divorce in England and Wales?

Not everyone can divorce in England and Wales. It can be quite an attractive forum for divorce as our laws may be considered more favourable in certain circumstances that those of another country. To divorce in England and Wales, you must be able to show:

• Both spouses are habitually resident in England and Wales.
• The respondent is habitually resident in England and Wales.
• Both spouses were both last habitually resident in England and Wales and one of them continues to reside there.
• On a joint application, either spouse is habitually resident in England and Wales.
• The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.
• The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.
• Both spouses are domiciled in England and Wales.
• Either spouse is domiciled in England and Wales.

Section 5(2) Domicile and Matrimonial Proceedings Act 1973

This is not always straightforward and if you think that there could be a jurisdictional issue in your case, please contact one of our expert team.

Please be aware that Scotland has a different legal system from England and Wales. If your case is linked to Scotland and you may want to divorce there, you should take specialist advice in that jurisdiction.

Sometimes spouses may separate and lead separate lives for many years without divorcing. Other times, separating spouses are keen to formalise the breakdown of the relationship to be able to move on without worry about any remaining rights/obligations they have towards the other. Even if you are moving ahead with divorce straight away, the process takes a minimum of 26 weeks, and it can be longer than this if you need to work out what happens with your finances or children.

Is it legal?

The question a lot of people are left with is ‘am I in limbo?’. Separating spouses may worry that they are ‘not allowed’ to date whilst they are still legally married to someone else. This is not the case. You absolutely can date when you are going through a divorce.

Is it a good idea?

The question of whether you ‘should’ date is a little different. The fact you are going on dates and putting yourself out there again will not have an impact on the divorce process, but it might impact your financial settlement. One thing that it might do is upset your former partner. If you are trying to come to an agreement about how your assets should be split, your dating life might cause friction and increase any animosity. This is not a particularly ‘legal’ point, but it is something to consider. Further, some divorces are amicable, and your former partner may be pleased to see you moving on or may have moved on themselves.

What if it gets serious?

Dating someone whilst you are going through divorce proceedings becomes more relevant when the relationship becomes more serious. If you decide to live with a new partner, or get engaged to be married, the court can view your relationship as being one with some permanency. This means that, when looking at a financial settlement, your new partner’s assets and income may be taken into account. This is because the court expects that your resources will be pooled if you are living together or considering marriage.

When considering a financial settlement, the court will look at everyone’s needs but also their resources. You will be asked to give the court details of your new partner’s income and assets insofar as you know them though, normally, they are not probed into in as much depth as your own.

If you are living together, the court would think it likely that you would share the burden of the bills. You may be seen to need less income per month because of this. If you have moved into a partner’s house, your housing needs can be considered to be met. Further, you may need less capital for a deposit as your partner will be presumed to be contributing.

If your financial settlement includes you receiving spousal maintenance from your partner, these payments would end on remarriage. It can also be built into any agreement, or decided be the court, that payments should end on cohabitation so the line is not necessarily drawn in the sand after the divorce and financial matters are finalised.

It is a very personal decision as to whether you want to date whilst divorced. It is a bigger decision still to decide whether you are going to move in with a new partner . Bear in mind that, if you give evidence that you have no intentions to move in with, or marry, your new partner but immediately go and do so when your financial matters are settled and your divorce is finalised, your former spouse may be able to set aside the order. If you are moving on with your life, it is best to be up front about it.

If you have any concerns about dating whilst divorcing, please do not hesitate to contact our expert team.

Can I keep my married name, can I change my name after divorce, will I be forced to change my name? These are just a some of the myriad of questions you might have about what happens to your name during the divorce process. Here as some of the things you need to know in a nutshell about your name in divorce and what the rules that govern how you change your name after your divorce or civil partnership.

Can I keep my married name or do I have to go back to my maiden how to name?

The short answer to this question is yes, you have the right to assert which ever name you want to use at any point. If you wish to keep using your maiden name for practical purposes for work, you feel it is part of your identity after being known by that name for years or your wish to continue having the same name as your children, it is your prerogative as to keep using it. Your ex-partner cannot force you to change your surname or make you keep it.

What if I want to revert to my maiden name, can I change it after divorce?

As above, if you would like to start using your maiden name you can simply start using it again. There are however practical considerations that must be taken should you wish to change your name in terms of your day to day living, this can include changing your passport, driving licence and bank accounts. To ease the transition of going back to using your maiden name the most sensible course of action would be to change the name on your passport first as this can then be used as proof of your identity when changing your name with any other organisation. 

For most organisations to change your name after your divorce you will need to present the following documents: – 

• Original or certified copy of Marriage Certificate;
• Original or certified copy of birth certificate; and
• Final Order or Decree Absolute.

If for whatever reason you have misplaced one of the documents detailed above you can request a further copy for a nominal fee of £11 (which will be sent within 4 days) or an express fee of £35 (which will be sent the next working day); you can order the certificate using the following link: – https://www.gov.uk/order-copy-birth-death-marriage-certificate 

Can I change my name during my divorce? 

The short answer again is yes, you can change your name during the divorce process. Should you wish to change your name legally at any point you can enrol for a Deed of Name, this can be undertaken at any point and is not contingent on you getting a divorce; you can find further information on this process using the following link: – https://www.gov.uk/change-name-deed-poll 

If you seek to change your name during your divorce, and have done via Deed Poll it is imperative that you advise all parties to your divorce, particularly your lawyers so they can notify the court of your intentions. Failure to do so may place your divorce in jeopardy, as your Conditional Order/ Final Order will have likely been granted under your old name and therefore to a person who legally no longer exists. Such a scenario could prove a costly mistake and will add unnecessary heart ache and delay.

As you can see there are common pitfalls that people often fall foul of during the divorce process, should you any questions about getting a divorce or the divorce process entails please do not hesitate to contact a member of our specialist divorce team and we will be happy to assist.

Absolutely. In short, you can change your divorce solicitor at any stage throughout the process – divorce suit, financial remedy, or child arrangements.

At McAlister Family Law, although you will have a solicitor appointed to overlook the work on your case, we very much work as part of a team, and it is therefore equally important that you not only have a good relationship with the solicitor with conduct of your matter(s), but also the wider team including paralegals, legal assistants, and any other person that may assist you with your matter. It is important that you feel supported, and guided, by your team given that family law matters are not only complex, but they are also extremely emotional in nature. Each family law matter is completely unique and therefore you will likely want a solicitor who fits your unique situation. That being said, it is possible for the relationship between a solicitor and a client to deteriorate due to the high pressure, and high stress, of family matters.

If at any point you wish to change your solicitor, team, or firm, it is important to highlight this to your current solicitor so that steps can be taken to make the necessary changes for you. If the relationship with your current solicitor has broken down irretrievably, but you still wish to instruct the firm for continuity, then it is usually possible to transfer your matter(s) to another solicitor within the firm. This is usually easier than transferring your matter(s) as your current solicitor will be able to easily bring your ‘new solicitor’ up to speed with your matters and assist you both in ensuring that the transition is as seamless as possible.

If you wish to transfer your matters to a new firm, then this is also fairly straightforward. You do not need to justify why you wish to change firms, but it is important that you communicate your wish to change to your current solicitor as soon as possible so that they do not continue to work on your matters and incur any further legal costs. If your matter is within court proceedings (either Divorce, financial remedy, or child arrangements) your current solicitor will also have to notify the court of the change, via a document signed by you, and signal whether you have instructed a new solicitor or whether you wish to act as a litigant in person. When changing firms, it is also essentially that any outstanding invoices are settled so that your current solicitor can transfer your file to your new solicitor as soon as possible. Solicitors are able to hold property (a file or original documents for example) on ‘lien’ until payment of outstanding invoices have been resolved. Matters around a lien are complex and it is therefore important to discuss any outstanding invoice, or change in representation, with your current solicitor as soon as possible.

Should you wish to change solicitors, at any point, when instructing McAlister Family Law, then it is advisable to have a conversation with your current solicitor.

Parental alienation, unfortunately, and sadly, it is becoming a very common feature in cases. We must start with the basics, there is currently no legal definition of Parental Alienation. However, it can be summarised in situations where parents have separated and one parent whether directly or indirectly displays to a child or children unjustified negativity aimed at the other parent. In such cases the relationship between parent and child can be lost altogether and the courts have been struggling to deal with such cases as quite often the alienation can be subtle, difficult to identify and can take place over several months if not years.

Cafcass, the independent body appointed by the Court defines parental alienation as ‘when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by one parent. The definition has recently received approval from the Court of Appeal in Re S (Parental alienation: Cult) 2020.

How can you identify Parental Alienation?

Sometimes parents cannot identify themselves that they are causing alienation to their child. Emotions run high when trying to negotiate a difficult path of deciding what the arrangements for your child should be when you are separated. Sometimes, our own feelings dictate how we act, what we say and who we say it to. On occasions these actions and words can influence your child without you even knowing it. For children, they will certainly struggle with their parent’s separation and it must be remembered that their world changes significantly and they can feel divided loyalties, upset and confusion and therefore to witness their parents acting and saying things they have not heard before can be hugely damaging to them.

Parental Alienation can be indirect, where your own feelings take over and do not prioritise your child’s welfare. This can take months, even years, for it to be detected and to be acknowledged, by which time the damage to a child can be irreparable.

Parental Alienation can also be direct, which is where a parent deliberately does and says things to alienate the other parent. As a result, the child will start to move away from the other parent, often not wanting to see the other parent and treating the other parent in a similar way to the parent who is inflicting the negative and damaging behaviours.

Parental Alienation is often a combination direct and indirect, but what we do know is this type of behaviour is hugely damaging to a child, both emotionally, psychologically, and even physically on occasion.

This is an evolving and a complex area of law but if you believe that this a feature of your relationship with your child, then the quicker you act, the better outcome for your child. Intervention is key and here are McAlister Family Law we have Lawyers who are highly specialised in this area who will be able to assist you with understanding, compassion and most importantly ensure that you are supported through what can be a long and emotional journey.

A Child Arrangements Order is an order directed by the Court that details the arrangements for a child and is legally binding on the parents. The order decides the following matters:

• Where the child lives.
• When the child spends time with each parent; and
• When and what other types of contact take place.

The order is most commonly issued to the biological parents of a child when parents separate or divorce. However, anyone who has parental responsibility can apply and it does not matter whether they are a biological parent, a stepparent, a guardian or another relative (i.e., grandparents, uncle and/or aunt), if they feel their access to the child is being unfairly restricted.

The first step in applying for a Child Arrangement Order is to attend a Mediation Information Assessment Meeting (MIAM). The parties are required to attend this meeting, during which a qualified mediator will consider whether an agreement on child arrangements might be reached through an alternative dispute resolution process such as mediation. If mediation is not a viable option, the next step is to submit a form to the Court with all relevant details and declaring your intent to seek a Child Arrangement Order. The Court’s priority will always be the child’s welfare. The purpose of the order is to guarantee that arrangements have the child’s best interests in mind, and the Court will always have this as the primary consideration when making its decisions.

The two most common types of Child Arrangement Orders are: contact orders and living with orders. A contact order stipulates the terms on which a non-custodial parent can have contact with a child; and a living with order sets out where the child will live.

There are two further types of Child Arrangement Order: a specific issues order, and a prohibited steps order.

• Specific issues orders determine specific matters relating to the upbringing of a child, such as the sort of education they receive (for example what school they go to, or whether their education is religious).
• A prohibited steps order limits a parent or guardian from taking a specific step, for example, preventing a child being moved out of the country.

The length of time it takes to achieve a final Child Arrangement Order depends on a number of factors, such as the complexity of the case, the amicability of the parents and guardians involved, and whether there are any safeguarding concerns regarding the child or children in question.

If the terms of the order are no longer being met by one party or the other, it is possible to ask the Court to enforce the order. If the Court concludes that an order has been beached, they have the power to issue several different sanctions to the party deemed to have breached the order. The Court might order the parents to attend parting courses, refer them to a mediator; otherwise, they may decide to issue a Contact Enforcement Order or impose a fine or other punishment on the party who breached the initial order. Alternatively, they may decide to reconsider the terms of the order and issue it again with variations. In very serious cases they can include sending a parent to prison for contempt of Court. The Court can also order CAFCASS (the Children and Family Court Advisory and Support Service) to check that all parties comply with any enforcement order issued.

If the Court deems it appropriate it may decide to vary the order. This could include changing the terms of contact between a non-custodial guardian and child or even transferring custody entirely. You can also seek to change a Child Arrangement Order without a breach having occurred. If all parties agree, the order can be amended with the help of a solicitor. However, if one party does not consent to any changes, then a further application to Court will be necessary.

Travelling abroad when you and your children have different surnames can at times prove to be challenging. It has become increasingly difficult to travel abroad as a family in these circumstances in recent times.

Most countries have guidelines when it comes to this type of travel and the majority of them are very strict when it comes to parents travelling with children that do not have the same surname as them. The main reason for this is to prevent child abduction and trafficking. Whilst this is a welcome change which promotes the safety and welfare of children all over the world, it does mean that if you are not fully prepared, a holiday abroad can quickly become more stressful than anticipated.

As the guidelines vary from country to country, it is difficult to predict what documents will need to be produced in order to prove your relationship to your child as a person with parental responsibility. However, it is highly likely that you will undergo additional checks at the immigration border when travelling.

There are some documents that you can bring with you which will reduce the likelihood of you and your family being held up whilst travelling.

For example:

• Your child’s birth or adoption certificate. This can verify that you are in fact the child’s parent as it should state your name and your relation to the child.

• Proof of your change of surname such as your marriage certificate, deed poll or decree absolute which can demonstrate the reason for the difference in surname.

• Written and signed consent from the other parent. Asking the child’s other parent to sign a written form of authority demonstrating their consent to you taking then abroad can be useful. This is because in most circumstances it is illegal to take a child abroad without the consent of every person with parental responsibility of that child.

• Existing Court Order. If your child is subject to an existing Court Order such as a Child Arrangements Order, this is another document which may verify the connection to your child.

It is also likely that your child will be questioned at the immigration border in terms of their relationship to you, if it they are at an appropriate age. It can be useful to prepare your child for the possibility of this happening prior to starting your travel abroad, as otherwise, it may surprise them.

This is however country dependent, so it is always best to check their specific guidelines via the relevant country’s embassy. Airline companies can also be quite useful in terms of providing guidance as to what the requirements will be.

If you have any questions about this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.

Choosing a school for your child can be a difficult task and one of the most important decisions you can make for your child. Education is pivotal to your child’s future and unlocking your child’s potential to progress in the world.

On occasions, when parents separate it can become difficult to communicate, sometimes your views do not align, and it is therefore easy to you lose sight of what is best for your child.

When discussing which school your child should attend, it is for those persons who have parental responsibility for the child, who can make these very important decisions

Parental responsibility is defined in Section.2 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In simple terms this relates to decision making for the child on a day-to-day basis but also provides any person who has parental responsibility to have a say in the major decisions of a child’s life and choosing a school and how your child is going to be educated falls into this category.

Whilst choosing a school could seem to be a simple decision such as revieing Ofsted reports, comparing one schools’ performance to another, it also can be complicated by where you live, whether your child is going to be privately educated and if so, who is going to pay and therefore communication with all persons who have parental responsibility is key.

Another consideration is exactly who has parental responsibility for your child, who should you be discussing these matters with? The mother automatically has parental responsibility. A father, has parental responsibility if they were at one time married to the mother, who is named on the birth certificate, who has a parental or adoption Order or who has a parental responsibility by agreement or Order of the Court. It is crucial that any person who has parental responsibility is consulted as unilateral decisions should not be made and if they are a Court could reverse those decisions made, upon an application made to the Court.

What happens if there is no agreement?

If agreement cannot be reached, then mediation may assist as this will encourage communication and hopefully lead to a consensus of how schooling will be approached. Ultimately if there remains disagreement then one party would need to issue an application to the Court for a Specific Issue Order. If this occurs then the decision making will fall to the Court after considering various factors, with the paramount consideration being the child’s welfare. Whilst the parent’s views would be listened to, there are other factors which the Court must consider which laid down at Section 1(3) of the Children Act known as the welfare checklist.

These are difficult and sensitive decisions to make, as they relate to your child’s future and here at McAlister Family Law, we will guide you through the process and provide you with correct expert legal advice.