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Frequently Asked Questions

Below are some of the Frequently asked questions about Divorce/Separation.

By filing a divorce petition (Form D8) at your local court or online setting out the reason for the divorce.

It is of great importance to us that our clients are able to manage their legal costs in the best way possible for them. It is for this reason that we are very clear about the likely costs at the start, and we will always discuss with the client the options and best way for them to make payment towards their legal fees.

Our hourly rates will usually apply to all divorce matters, however please speak with us if you have any concerns or questions about costs.  Our initial meetings are always free of charge during which we will discuss with you the likely future costs depending upon the work required.

For more information, please read our blog post about how to fund legal costs.

Whether you qualify for Legal Aid will often depend upon your financial circumstances.

Legal Aid for family cases is generally means tested, meaning that your gross income, disposable income, and disposable capital will be assessed to see whether you qualify. Your financial circumstances are not usually considered where the case involves children in care, or child abduction and often you will be automatically entitled to Legal Aid in these cases, depending upon your relationship to the child and the stage of the case.  Legal Aid is also available for victims of domestic violence, or where children are at risk of violence.

In some circumstances, Legal Aid may not cover all costs, meaning you may have to pay some costs up front, or pay back some costs if you are awarded money or assets by the Court. You can check if you are entitled to Legal Aid here.

Unfortunately, Sousa Law does not offer Legal Aid services, however you can find a resolution trained lawyer who does offer Legal Aid here.

The divorce alone normally takes between 5 and 6 months. In most cases, the divorce and financial settlement should be concluded within approximately 6 to 12 months but it can take longer. Sometimes it is best to finalise financial arrangements first before concluding the divorce by way of Decree Absolute.

Read more about the risks of concluding a divorce before financial arrangements on our blog.

You quite often hear the phrase a “quickie divorce”. However, the legal procedure cannot be shortened. The procedure provides for certain timescales which cause the process to routinely take approximately 5 months at best. Much depends on the speed with which documentation is completed by the parties and how quickly the paperwork is handled by the Court. There is a minimum period of 6 weeks between Decree Nisi being granted and being able to file an application for Decree Absolute.

This is not correct. Whether it was your decision to end the relationship or not, or indeed your decision to leave the former matrimonial home or not, this does not mean that you have no rights. It would be sensible for you to seek legal advice to discuss your options, particularly if you require financial assistance from your spouse following separation.

Collaborative Law is a unique process that is sometimes referred to as ‘no court divorce’ as avoiding court proceedings is the fundamental aim of the Collaborative Law process. It is generally a faster and more family-focused approach than the traditional approach.

It involves a series of roundtable meeting with the couple and their respective collaborative lawyers, allowing open and honest negotiations in a respectful manner that avoids heated solicitor correspondence and the threat of court proceedings.

Find out more about Collaborative Law here.

Family Mediation is where an independent third party helps you and your partner talk through matters arising from family breakdown. This can include helping you discuss whether you wish to separate and/or divorce and if so how you will go about this. There will also be discussions about finances, property, children and any other matters you need to resolve.

Family Mediation is a voluntary process that both parties must want to engage with. It can help protect your parenting relationship moving forward and assist in ensuring you remain on good terms if possible. This can enable all parties to move forward constructively and cost-effectively.

Find out more about our mediation services here.

Arbitration is a process similar to a private court process in a setting of your choice.  You and your spouse/partner will need to agree to use the process, sign an ARB1, and you will need to appoint an arbitrator.

The arbitrator will make a decision that will be final and binding in relation to any issues regarding financial matters or children matters.  Arbitration enables disputes to be resolved quickly, confidentially and flexibly in a less formal setting than the Court.

Find out more about our Arbitration services here.

Below are some of the Frequently asked questions about Children/Childcare.

The Child Arrangements Programme was issued in April 2014. Applications for “residence” or “Contact” (or “custody” and “access”) are now applications for a Child Arrangements Order. These applications typically deal with who the child(ren) should live with and how much time the child(ren) should spend with the other parent.  Essentially, it is the terminology that has changed.

There is no presumption that the children shall live with one parent over the other. The focus will be what is in the best interests for the child(ren). If you cannot agree the Court can be involved and decide. This is the last resort. The Court will encourage you to try and resolve issues in mediation. If where the child(ren) currently resides is placing him/her in immediate danger, then emergency applications can be made to the Court.

A MIAM is a mediation information and assessment meeting where information will be given to you about all options available to avoid court proceedings.  You must attend (unless you satisfy a relevant exception) a MIAM prior to initiating any standard Family Law proceeding, including an application for a Child Arrangements Order  or a Financial Remedy Application.

Find out more about our mediation services here.

Parental Responsibility provides a parent with the rights and responsibilities to be involved, consulted and make welfare decisions for a child in relation to, for example, their education, health, religion and where a child should live.

A Mother obtains it by giving birth. A father, however, has this responsibility only if he is married to the mother when the child is born or has acquired parental responsibility for his child through one of these three routes:

  • By jointly registering the birth of the child with the mother (for births since 1st December 2003)
  • By a parental responsibility agreement with the mother
  • By a parental responsibility order made by a Court

It is usually best to try to agree a figure. The Child Maintenance Service (formerly the Child Support Agency) provides an online calculator for working out the amount that should be paid based on how many children there are, the payer’s income and how often the children stay with the payer during a calendar year.

Below are some of the Frequently asked questions about Unmarried couples/Living together.

It is a common belief that if you live with someone for a specific length of time, you become a ‘common law spouse’ and therefore have certain financial rights should you separate. However, this is not the case.

Couples who previously lived together have no right of financial support from each other. If a financial adjustment is sought then unmarried couples will face a complex mixture of procedures and law, rather than the relatively more straightforward procedures and principles applied to married couples.

This depends on whether the bills are in joint names, your sole name or your ex partner’s sole name. If the bills are in joint names you are both liable for meeting those payments and/or outstanding debts. Any bills/debts in your sole name, you are responsible for and vice versa.

If you are unmarried with children, your ex-partner is not liable to pay maintenance to you. However, they are liable to pay child maintenance in accordance with the statutory formula that is currently governed by the Child Maintenance Service.

Married couples can apply to the Court, if necessary, to seek a Court Order compelling their spouse to pay maintenance to help cover necessary and reasonable outgoings until such time as the financial settlement for the permanent division of the financial resources has been made.

There is no simple answer to this. The law gives no automatic rights to a partner in these circumstances, but, for example, if you have contributed towards the deposit on a purchase, or provided money for significant improvement to the house, you may have a claim. It is worth getting legal advice and having an agreement drawn up to reflect property ownership, contributions and your intentions.

Not necessarily. If you have reached an agreement (particularly if it is documented) about the property ownership, your contributions and your intentions about the way it is held and what will happen to it in the future, then that can be very useful and persuasive evidence.

If a financial adjustment is sought then unmarried couples will face a complex mixture of laws, rather than the rules and principles applied to married couples.

Whether you are married or not, this does not make a difference. The most important thing is to try and resolve matters in the best interests of the children with as little disruption to them as possible. If you are not married it is important to ensure the issue of Parental Responsibility is resolved and in all cases to consider the children’s welfare needs.

This will usually depend on how the property is owned or rented. If the property is in joint names then it may be hard in the short term to force somebody to leave the property. You may need legal advice to discuss your best options.

A Pre-Nuptial Agreement is a document in which a couple intending to marry sets out how they want any property, debts, income and other assets purchased together or acquired individually or acquired during the relationship to be divided if the relationship ends. These agreements are voluntarily entered into and require very clear guidance in relation to their terms. It is very important to take legal advice in relation to the preparation and negotiations involved in the preparation of such a document.

A Post-Nuptial Agreement is the same as a Pre-Nuptial Agreement save for the fact that it is executed after the parties’ marriage.

Find out more about Pre-Nuptial Agreements and Post-Nuptial Agreements here.

Currently, a Pre-Nuptial Agreement is not technically legally binding. A Family Court in England and Wales can ultimately override a Pre-Nuptial Agreement and impose it’s own decision if it feels there needs to be a different outcome. This depends on the individual circumstances at the time of a divorce or separation.

However, a Pre-Nuptial Agreement is highly persuasive and it is highly likely that it will be upheld by the Family Court if drafted correctly. It will be useful evidence in proving how the parties originally wanted assets, income, debts, inheritances and other financial resources to be dealt with.

Find out more about Pre-Nuptial Agreements and Post-Nuptial Agreements here.

If you are contemplating marriage and have substantial wealth or inherited or pre-relationship-acquired assets then you should consider taking further advice. In any case, understanding prior to marriage what may happen to your financial resources in the event of the marriage later breaking down may be useful in determining whether a Pre-Nuptial Agreement should be sought.

Below are some of the Frequently asked questions about Civil Partnerships.

Yes. Civil Partnerships can be dissolved as long as you have been registered in a Civil Partnership for more than a year. A change in the law in 2004 provides separating Civil Partners almost the same procedure as married couples. The main difference is that a Civil Partnership cannot be dissolved on the basis of adultery.