Family and Home Produced by LawWorks

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1 Family and Home Produced by LawWorks Disclaimer: This factsheet describes the law in general terms. It is not intended to provide legal advice on specific situations and should not be relied upon as a source of legal advice. Date Produced: September

2 Contents A. Documentation to bring to advice clinics 3 B. Divorce 3 C. Resolving Financial Disputes 9 D. Ways to deal with common child contact or residence issues 10 E. Useful links 11 2

3 A. Documentation to bring to advice clinics Where relevant, you should bring the following documents when attending advice clinics: 1. Photographic ID and proof of address i.e. driving licence, passport, utility bills 2. Copy of your marriage certificate/civil partnership certificate if you have it 3. Court documents or legal agreements i.e. divorce papers, consent orders, parental responsibility agreements 4. Any paperwork or letters relating to the issue 5. Proof of your income (e.g. wage slips, benefit letters, tax credits) 6. A copy of the divorce papers if you have already divorced and are looking for help in relation to resolving the finances. B. Divorce You can only apply for a divorce or dissolution if you have been in your marriage or civil partnership for at least one year. In order to file for divorce, you will need to complete a divorce petition (Form D8). This can be obtained from the court website - You will need a certified copy of your marriage/civil partnership certificate in order to proceed with the divorce. If you do not already have one then you can apply for one from the General Register Office online at Fees for obtaining a copy are in the region of 10. If you entered into both a religious and civil marriage, these divorce proceedings may not dissolve the religious part of your marriage. You must therefore consult the relevant religious authority to see whether or not you should take steps to dissolve that marriage. Completing the Petition i. Front Page You need to complete your full name and tick to say whether you are applying for a divorce, dissolution or judicial separation of your marriage or civil partnership. ii. Part 1: About you (the Petitioner) and the Respondent Whilst you should enter your current details as fully as you know them, if you for some reason do not wish to disclose your address, you can leave the details blank and instead complete the confidential contact details (Form C8). It is very important that you complete the Respondent s details as the court will need their address in order to send them a copy of the petition. 3

4 iii. Part 2: Details of marriage/civil partnership The details must be entered exactly as they are shown on your marriage or civil partnership certificate, and you should attach a certified copy of the certificate together with any other supporting documents concerning any change of name (e.g. a certified copy of a change of name deed). If you married or entered into a civil partnership in a foreign country and the relevant certificate is in the language of that country, you must provide a translation of the certificate from a person that is authorised for translations. The translation should also be signed by a notary public or be authenticated by a statement of truth. iv. Part 3: Jurisdiction You must give the address of where you and your spouse/civil partner last lived together. The next question relates to whether or not the court has jurisdiction to hear your case. If you and your spouse/civil partner both live in England and consider it to be your home then you need to tick the box as follows: - If you are married tick the first box to say the court has jurisdiction under art 3(1) of the Council Regulation (EC) No 2201/2003 of 27 November 2003 and then tick to say that you are habitually resident in England and Wales - If you are in a civil partnership tick the second box to say that the court has jurisdiction under the Civil Partnership (jurisdiction and recognition of judgments) Regulations 2005 and then tick to say that you are habitually resident in England and Wales - If you are in a same sex marriage tick the third box to say that the court has jurisdiction under The Marriage (Same Sex Couples)(Jurisdiction and Recognition of Judgments) Regulations 2014 and then tick to say that you are habitually resident in England and Wales. If you are not habitually resident in England and Wales and are unsure whether the court has jurisdiction to hear your case then you should seek further advice on this point from an expert. v. Part 4: Other proceedings or arrangements If you have been involved in any other proceedings concerning your marriage or civil partnership, or any child of the family, then you need to provide details here. You should include the case number, court name and brief details about the case. 4

5 If your petition is based upon 5 years separation then you need to tick to confirm whether any agreement has been reached in relation to support being provided to either party or to children of the family. vi. Part 5: The fact(s) In this section you need to confirm whether you are applying for a divorce, dissolution of a civil partnership or judicial separation. A judicial separation is often used by parties who for religious reasons do not want to get divorced but wish to be legally separated. The process for judicial separation is very similar to divorce and the courts still have the same powers to make financial orders however, at the end, the parties will not technically be divorced. There is only one ground for divorce in England and Wales and that is that the marriage has irretrievably broken down. In order to prove that this is the case, you must rely on one of 5 facts adultery (can only be used for divorce and not dissolution of civil partnership), unreasonable behaviour, two years separation with consent, five years separation without consent and desertion. You must confirm within Part 5 of the petition which fact you intend to rely upon. vii. Part 6: Statement of case You must give details of the reasons you are relying on a particular fact. Here is some guidance about the types of things you should include for each of the 5 facts: Adultery This fact can only be used when you are applying for divorce NOT dissolution of civil partnership. In order to be able to rely on this fact there not only has to be adultery but you must have found it intolerable to live with the Respondent as a result of it. This means that if you have lived with the Respondent for 6 months or more after finding out then you will not be able to petition based upon adultery (you can still use it as evidence of unreasonable behaviour though!) You do not have to include the name of the person who your spouse committed adultery with but you should include some details about the dates and places that it happened. If the Respondent denies the adultery then a hearing will need to take place for a judge to determine the issue. This can increase costs and therefore it is always worthwhile asking the Respondent to sign a statement confirming that they committed adultery prior to filing the 5

6 petition. If they refuse to do so, you may consider relying on the unreasonable behaviour fact instead as this eliminates the need to prove the adultery. Unreasonable Behaviour You need to provide details of 5 or 6 examples of unreasonable behaviour by the Respondent. These examples are subjective therefore it does not matter if someone else would not have found the behaviour unreasonable what matters is that you found it unreasonable. It is best to put it in chronological order i.e. what was the first example of unreasonable behaviour and what was the final straw which led to you deciding that the marriage was over. Desertion You need to provide details of the date and circumstances of desertion along with confirmation that you have lived separately since then. Two Years Separation with Consent You must provide the date of when you and the Respondent officially separated, how it came about and what happened afterwards i.e. did you move out of the family home? If you were still living in the same house after you separated then you need to provide examples of the fact that you were leading completely separate lives i.e. you cooked your own meals, did your own washing etc. In order to use this fact you will need the consent of the Respondent. It is always worth getting written confirmation of consent from the Respondent to avoid further costs being incurred by having to amend the petition or go to hearing if they later change their mind. Five Years Separation The same details as with the two years separation fact need to be included. The only difference is that you must have been separated for five years and the consent of the Respondent is not needed. viii. Part 7: Details of the children You must put information about children born or adopted to both you and the Respondent, and any other children treated by both of you as children of the family i.e. born or adopted to either just you or the respondents who are living with you. 6

7 This information should include the child s relationship to you, their full names, and their gender. You must also provide their date of birth or tick to confirm that they are over 18 or between the ages of 16 and 18 but still in full time education. Statement of Arrangements If you have children under the age of 16 or between the ages of 16 and 18 and they are in full-time education, you will also need to complete a Statement of Arrangements for Children form. This is available online at In the Statement of Arrangements you will need to set out what has been agreed between you and the Respondent in terms of arrangements for the children and any maintenance to be paid. The completed statement of arrangements for children must be signed by you and, if possible, by the Respondent. If you cannot reach an agreement with the Respondent and they will not sign it then you still need to submit the form when filing the petition. The Respondent will have the opportunity at a later stage to state why they do not agree and put forward their own proposals for arrangements. The Statement of Arrangements is not binding on either party but it is used to give the court an indication about what the current situation with the children is. If there is any dispute over arrangements for the children which cannot be resolved then separate Children Act proceedings may need to be brought (see below for further information) ix. Part 8: Special assistance or facilities if you attend Court If you or the Respondent need special assistance and/or special facilities due to a disability or impairment, your requirements must be set out in full in order for court staff to make arrangements. x. Part 9: Service details You must put both your own details and the Respondent s details here so that the Court can send both parties relevant documents. If you do not have the address of the Respondent then this will cause problems with service of the petition and you should seek advice from a Family Law solicitor. xi. Part 10: Prayer The prayer is an outline of the claims that you wish to make. If you wish to claim that the Respondent or Co-respondent should pay your costs, you must indicate this here. The Court is unlikely to order the Respondent or Co-Respondent to pay 7

8 your costs unless you are able to demonstrate that you are not in a financial position to do so but the Respondent or Co-Respondent is. If the Respondent or Co-Respondent does not agree to paying your costs then the matter will have to be listed for a hearing for a judge to make a decision. It is therefore best to try and reach an agreement on this before filing the petition. If you are in any doubt whether or not you should claim costs you should seek further advice from a Family Law solicitor. If you need the Court to resolve any dispute with the Respondent over finances, you can apply for a financial order which can deal with property, maintenance, a lump sum payment and/or pensions. In order to do this you will need to file a separate application to the Court (see below for further information). In Part 10 of the petition, the court is asking you to confirm whether you intend to apply for any of these Orders in the future. Even if you do not think that you are likely to then it is always advisable to tick all of the applicable boxes in this section to indicate that you do. This means that if you change your mind at a later stage, even if you are remarried, the option to apply is still open to you. If you do not tick the boxes in the petition and you remarry then you will be prevented from applying at a later stage. xii. What must I send to the court? 1. Your completed petition one for the court records and one service copy for the Respondent (and one service copy for the Co-respondent, if applicable). You should also keep a copy for your records. 2. One original or certified marriage or civil partnership certificate 3. If applicable, your completed statement of arrangements for children one for the court records, one service copy for the Respondent and one for your own records. 4. The appropriate issue fee (please consult leaflet EX50 Civil and Family Court fees which can be found at eng.pdf for details on the fees payable and whether or not you have to pay them) xiii. What happens next? Once you have filed the petition, a copy will be sent to the Respondent who will need to complete an Acknowledgement of Service confirming receipt and advising whether or not they wish to defend the divorce. If the Respondent fails to return the Acknowledgement of Service then you should seek advice from a solicitor as to other methods of proving service. If the Respondent wants to defend the divorce then the court will have to list it for a hearing to decide whether or not the marriage has irretrievably broken down. If the Respondent does not wish to defend the divorce, once an Acknowledgement of Service has been received (or service proved using a different method), you will then need to make an application for decree nisi (a decree nisi is a document that states the court 8

9 doesn t see any reason why you can t divorce) using Form D84 and file it along with a Statement in Support (Form D80A/B/C/D/E) which is specific to the fact you are relying on for the divorce. A date will then be set by the court for a hearing where decree nisi will be pronounced. You do not need to attend the hearing unless there is a dispute over costs. Once decree nisi has been pronounced then you can make an application for decree absolute (a decree absolute is the legal document that ends your marriage) using form D36 and once this has been approved by the court, you will officially be divorced. NB: Before applying for decree absolute, it is advisable to ensure that all the financial issues have been resolved. The forms can be found at C. Resolving Financial Disputes When you divorce, often the hardest part of the process is resolving the financial issues. Mediation The best option is for you to try and agree between the two of you how any property and other assets should be divided up. If you do not feel that you are able to do this by yourselves then mediation can be very useful. Mediation involves sitting down with an independent person who can assist you and your spouse in reaching a compromise. All discussions during mediation are without prejudice and any agreement which is reached will not be binding (although it can be turned into a binding court order at a later date). Further information about mediation and how to find the nearest service can be found at FM1 Form If you are unable to agree on the finances then ultimately, an application (Form A) will have to be made to the court for a judge to make a decision. When making the application you will need to complete an FM1 Form to demonstrate that mediation has been considered. You should complete the form as follows: i. Fill in Part 1 if neither party has attended a MIAM because an exemption applies e.g. there has been domestic abuse. Details about the exemptions can be found at If you are filling in this part of the form it should be completed and signed by either you or your legal representative. ii. Fill in Part 2 if: 9

10 o the family mediator decides that one of the exemptions applies; o the parties attended a MIAM and decided not to start or continue with mediation; or o the mediation started, but broke down or concluded with issues unresolved. If you are filling in this part of the form it should be completed and signed by the family mediator and countersigned by you. You do NOT need to complete both parts of the form, only the part which applies to you. If one party declines to attend a MIAM without good reason, and if an application is made to court, the judge may adjourn the case to enable them to attend a MIAM. It is therefore better to consider mediation at an early stage by attending a MIAM before you start court proceedings. D. Ways to deal with common child contact or residence issues It is preferable for the court that parents agree arrangements for children between themselves. Mediation can be very a very useful tool to assist you with doing this. As with resolving the finances, you will have to demonstrate you have considered mediation by filing an FM1 Form with any application made to the court (see above for details on completing the FM1 Form). Applying to the Court If there is a dispute about arrangements for the children which cannot be resolved between you, an application can be made to the Court by completing a C100 Form and filing it along with an FM1. If you are alleging that the other party has caused any harm to you or your child you will also need to file a C1A Form providing details of this. These forms can be found at The Court has the power to make an Order setting out where a child should live and how much contact there should be with the other parent. It can also make emergency orders to prevent the child being removed from one party or from the country and make decisions in relation to specific issues i.e. medical treatment. The court will instruct a Children and Family Court Advisory and Support Service (CAFCASS) officer to your case. They will do initial safeguarding checks and then later on in the process will prepare a more detailed report setting out their recommendations for arrangements for the children. It is extremely important that you cooperate with CAFCASS. The first stage after making the application is for a Directions Hearing to take place. Both parents should attend this. You are likely to meet with CAFCASS and you will be encouraged to try and reach an agreement. If you are not able to do this and there is still a dispute then the Court will not make a decision and will make an Order setting out what will happen next with the case. 10

11 There may be several hearings before the Court makes a final decision about the arrangements for the children depending on the issues. When they make their decision they will take into account a variety of factors including the wishes and feelings of the children and their physical, emotional and educational needs What you should know about taking your child abroad If you have a court order stating that the child lives with you then you are able to take them abroad for up to 30 days without permission from anyone else with parental responsibility If you do not have a court order stating that the child lives with you then you must get permission from all those with parental responsibility to take them abroad for any period of time. Who has parental responsibility? Mothers A father who is married to the child s mother A father who is listed on the birth certificate (provided the child was born after 1 st December 2003) Anyone who has entered into a Parental Responsibility agreement with the mother Anyone who has a Parental Responsibility Order from the Court. E. Useful links