Divorce explained

Here at Furley Page, we don’t believe that getting divorced needs to be more stressful and confusing than it already is. That’s why our solicitors pride themselves on explaining the ins and outs of separation in a clear, simple and accessible manner.

If you’re unsure about any of the terms used within separation and divorce proceedings – such as Decree Nisi or Ancillary Relief – we’ve created an easy-to-understand glossary of terms for you to read.

Separation 

  • Legal Separation : there is in fact no legal requirement to formalise your decision to separate, what is usually referred to is a Separation Agreement.
  • Separation Agreement : document setting out the terms agreed, usually before divorce proceedings are considered. These agreements will usually be upheld by the Court once a divorce is begun, resulting in a Consent Order.
  • Judicial Separation : a formal separation sanctioned by the Court that enables the Court to make orders about money and property.

Divorce

  • Petition : the document by which a divorce or judicial separation is applied for which must state that the marriage has irretrievably broken down for one of 5 reasons.
  • Adultery :  a sexual relationship, entered into voluntarily, by a married person where the other person is not their spouse, whilst the marriage is still in existence. This can be relied upon by the Petitioner even if the parties to the marriage have already separated and the adultery was not the cause of the separation.
  • Unreasonable behaviour allegation : the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to have to live with the Respondent – this can cover a very wide range of behaviour.
  • Desertion : 2 years’ of separation to which one party did not consent.
  • Separation : 2 years’ of separation if both parties agree to a divorce, 5 years if one party does not agree.
  • Acknowledgement of Service :  the form that the Court sends to the Respondent (and named Co-Respondents) with the petition. The Respondent returns the form indicating that the divorce papers have been received and whether the divorce will be defended.
  • Answer : the formal defence to a divorce petition disputing the allegations made in the Petition.
  • Application for Decree Nisi: The stage at which the judge looks at the divorce papers and certifies that there are grounds for divorce, indicating that the marriage can be dissolved unless sufficient cause is shown to the contrary within six weeks and one day of the Decree Nisi. It is at this stage that a judge will also make any Order about the Petitioner’s costs in pursuing the divorce.

The people involved in divorce

  • Petitioner : the person who applies for a divorce, dissolution of the civil partnership or judicial separation.
  • Respondent : the other spouse upon whom the divorce, dissolution of the civil partnership or judicial separation proceedings are served.
  • Co-Respondent : a person with whom the respondent is alleged to have committed adultery. The law no longer requires that person to be named as a Co -Respondent in the divorce proceedings.
  • District Judge : a Family Court judge who deals with most of the divorce proceedings and usually with financial matters and issues relating to children.

When a marriage is coming to an end

  • Decree Nisi : the provisional order indicating that the Court is satisfied that the grounds for divorce have been established.
  • Decree Absolute : the final order of the Court, which brings the marriage to an end. Both parties are then free to remarry.

Financial Provision

Providing both parties disclose their financial situation to each other honestly, plans can be made to divide what remains.  The plan must take into account what a judge would be likely to do if the matter came before the Court. All of this can be dealt with voluntarily and without a formal application to the Court, until the end to allow the Court to approve an agreement.

  • Ancillary Relief : old term for Application for a Financial Order made within divorce proceedings.
  • Maintenance : money payments of income or capital, but usually used to refer to income, or Periodical Payments.
  • Periodical Payments : payments of income to a spouse or child.
  • Lump Sum : capital payment, usually to a spouse.
  • Property Adjustment Order : an order that a husband or wife should transfer property to the other. Can refer to personal property, such as cars or furniture, but usually refers to a house or land.
  • Order for Sale : an order that property should be sold and the proceeds divided in shares stipulated by the Court.
  • Pension Sharing Order : an order that a pension fund should be divided in percentages stipulated by the Court creating a new fund in favour of the recipient.
  • Clean Break : a financial arrangement where it is agreed or ordered that the husband and wife will make no further claims against each other for capital or maintenance.
  • Undertaking : promise by one party to do something which the Court has no power to order them to do, eg pay off a mortgage.
  • Consent Order : an order made by a Court, which can include all of the above types of order, giving effect to the terms agreed between husband and wife, if the Court is satisfied that the agreement makes reasonable provision for the parties and any children.
  • Disclosure : whether or not an agreement about Financial Provision has been reached. All the income, assets and liabilities of both parties must be disclosed and values agreed or proved. Frequently made in Form E, even if provided voluntarily.
  • Application for a Financial Order : if there is a failure by one party to make full disclosure, or it is not possible to reach sensible agreement, an application to the Court can be made at any time with a view to resolving the financial claims between the husband and wife. An application to the Court will result in a timetable which the parties are required to comply with:
  1. Step 1 - Form A :  the form which begins the Application for a Financial Order and which results in the Court setting the timetable.
  2. Step 2 - Form E : formal disclosure of the assets, income etc of each party in the standard form required by the Court.
  3. Step 3 - First Directions Appointment (FDA) : The solicitors must then identify the issues and deal with the need for any further questions to be raised or valuations to be obtained. The Court will then make the appropriate orders at the First Directions Appointment (FDA).
  4. Step 4 - Financial Dispute Resolution (FDR) : The Court lists the matter for a Court-assisted Mediation known as a Financial Dispute Resolution (FDR) hearing. The District Judge listens to each party’s case and gives an indication as to an appropriate division. The parties are given time to talk at Court to see if the matter can be agreed on that day. If agreement is reached it can be recorded by way a Consent Order at the Court. If no agreement is reached, then the judge lists the matter for a final hearing.
  5. Step 5 – Final hearing : A different District Judge to the one who heard the Financial Dispute Resolution (FDR) will hear the case in full and listen to the evidence of the parties, which includes the disclosure previously submitted, and the Judge will then decide on the division of the assets between the parties, making an Order on that day.

Pre-nuptial Agreement

Unlike a Cohabitation Agreement, a pre-nuptial agreement will not necessarily bind the Court, but it can be a significant factor in the decision as to how to divide the assets. Creating one is a step that should particularly be considered if one or both parties already have significant assets - an interest in a family business, equity in a property, valuable accrued pension rights or substantial savings. Sensible precautionary steps will then be in place to protect the financial position should the marriage end.

The important thing to remember about pre-nuptial agreements is that they are far more likely to be upheld by the Court if they are a genuine attempt to agree in advance of the marriage, how the Court would divide the assets on divorce, rather than being an attempt to impose one party’s view as to what the Court ought to do. This means that they must be preceded by full disclosure of both parties’ financial positions and entered into with the benefit of separate legal advice.

Children

  • Child of the family : a child who has been treated by the married couple as a child belonging to their family whether in fact the biological child of both parents or not. This definition includes step-children.
  • Parent with care : the parent who lives with the child or children and who cares for the child or children on a day-to-day basis.
  • Absent parent : the parent who does not live with the child or children.
  • CMS or Child Maintenance Service :   the government department required to assess absent parents’ maintenance obligations to their children if they cannot be agreed
  • Child Arrangements Order : the technical term for an order or agreement stating which parent the child will live with on a day-to-day basis. and how often they will see the other parent.
  • Parental responsibility : the rights and responsibilities a parent has in relation to a child. If the parents are married, both parents have Parental Responsibility. If the parents have never married, the mother has parental responsibility, the father has parental responsibility when the following two provisions are satisfied:- i) the child was born after 1st December 2003; ii) the father is named on the birth certificate. If these conditions are not satisfied then the parents can agree that the father shall acquire Parental Responsibility or the father can apply to the Court for an order giving him Parental Responsibility. However acquired, Parental Responsibility does not subsequently cease even if the child lives with the other parent unless the Court makes an order terminating it.
  • Guardian or Guardianship : method of giving another person Parental Responsibility for your child in the event of your death, usually by Will.
  • Contact : the arrangements for the parent who does not live with the children to see the children, whether this be for holidays, overnight stays, daily, by writing or by telephone. Roughly equivalent to the old term “access” or the term “visitation rights” used in other jurisdictions.
  • Prohibited Steps Order : an application to seek the Court’s intervention to prevent one parent doing something involving the child or children, eg, changing the child or children’s schooling.
  • Specific Issue Order : an application to seek the Court’s permission on a specific issue relating to the child or children eg, changing their school or removing them permanently from the jurisdiction.
  • First Hearing Dispute Resolution Appointment (FHDRA) : the first court hearing which takes place once children proceedings have been issued, which both parties will have to attend and both parties will be encouraged to reach agreement.
  • CAFCASS : Children and Family Court Advisory and Support Service who will sometimes report the children's wishes and feelings to the Court

Mediation

Discussions in the presence of a neutral third party (the Mediator) relating to proposals for children or financial issues. Any agreement reached is not binding until the parties have had the benefit of legal advice.

Cohabitation

If two people decide to live together or cohabit, rather than marry, a judge does not have the same powers to divide income, capital, property and pension. Either one of the couple in the relationship can claim a right to an asset that is owned by the other, such as a house. Or claim an interest in an asset because of previous contributions made.

Property and other assets may also have been bought in joint names during the relationship. It is important there is full disclosure about  assets and any contributions by the couple on an individual basis. Plans can then be made about how to divide the assets.

If the process breaks down , either party may apply to the Court arguing an interest and asking that the judge to make an Order in relation to the value of their interest and what each party should receive.

Cohabitation Agreement : a cohabitation agreement sets out how the couple would split the assets from the start of the relationship. The cohabitation agreement is intended to be binding should the relationship break down, providing children have not resulted from that relationship.

How can we help you

Call us on

0333 331 9877

Email your enquiryEmail your enquiry

Key Contacts

Rayma Collins

Partner & Head of Family Law

Naomi Hayward

Senior Associate & Collaborative Lawyer