If you have children
If you have children you'll need to agree
1. Where the children will live.
2. When and how you will ensure they have plenty of time with both parents.
3. How you will continue to pay for all the things they need.
Sometimes where the children will live and with who is obvious to you both, but often this is a really hard decision. We’ve produced a separate guide for parents to help you to agree arrangements that work well for everybody, and to help you find a solution if that is not possible. Please see A survival guide to sorting out arrangements for your children. We’ve also produced a separate guide How to apply for a court order about arrangements for your children without the help of a lawyer.
While it’s all going on you have to be extra kind to yourself. Give yourself a few treats – they don’t have to be expensive. I gave myself a treat every time I’d done something really hard.
Money and property
1) Where you will each live
Some of the things you will need to think about are:
- Will one of you stay in the property or will you both need to move?
- If the home is rented or owned only in your ex-partner’s name, it may be that you need to take action to secure your rights to stay. What you need to do depends upon your situation.
- If the family home is going to be sold, how will the money from the sale be divided?
- Will you do it all at once or in stages? Some couples make a short-term and a long-term agreement to fit in with the needs of the family. For example, some couples (who can afford to) agree that one partner will stay in the home with the children until the children have left school, and then sell the house and divide the proceeds.
- Remember even if you move out, if your name is still on the tenancy or the mortgage you are still legally responsible for paying the rent/mortgage.
I was very against the idea of moving. I didn’t see why I should lose my home; it wasn’t me that wanted to end the marriage! But looking back on it, I think it helped create the fresh start that I needed.
Housing law is extremely complicated; you should definitely get advice about what your rights to stay are or what the implications of leaving are before you make any decisions or move out. You can get advice over the phone from Shelter’s free housing advice line – see More help and advice.They also have helpful information about your rights to stay in or return to the family home.
2) How you will divide your money and other property
The first thing to do is to make a full list of
- Your property, savings, pensions, investments, car etc. that you own jointly and individually,
- What you each earn, and
- Any debts.
Before you start making decisions about how to divide them, including the family home, it is a good idea to get advice from a family law solicitor, even if you are going to do everything else yourself. Take the full list of assets with you. The solicitor will be able to tell you what you should be trying to negotiate for so that you don’t leave something out or make a mistake. It is best to agree how to divide smaller items (like furniture, the TV, the DVD collection and so on) between yourselves.
Be aware though, that a family law solicitor will not be able to give you proper advice without seeing all your ex-partner’s financial information too.
You can find a good family law solicitor near you who believes in a constructive, non-confrontational approach on Resolution’s website (see More help and advice). It’s ok to phone around and compare prices. Some will offer one-off help for a fixed price; others may offer a first meeting for free.
Some of the things you will need to think about beforehand are:
* How you will divide any joint assets like property, savings, shares, and any pensions.
- If there will be a transfer of assets from one of you to the other.
- How you will you divide the contents of the family home.
- What you will do about other assets, such as the car.
- How will you deal with family debts?
- If one of you will pay maintenance to the other. (This wouldn’t be common if you have only had a short marriage/civil partnership or if you earn similar amounts).
If you cannot agree how to share out what you own between you, then we’ve produced a separate guide about How to apply for a financial order without the help of a lawyer.
We sorted out all the smaller stuff and furniture ourselves with the help of a packet of coloured stickers. We took it in turns to choose something so we each got the things that were most important to us.
Making a Will
If you died tomorrow would you want your ex to inherit everything that you own?
If the answer to that is ‘no’ or ‘I don’t know’ now is the time to get some advice on making a Will.
If you don’t have a Will and you are still married (but separated) anything you own on your death will go to your ex in line with the intestacy rules.
If you have a Will that leaves everything you own to your ex this Will applies until you get your Decree Absolute in the divorce process.
How you will ask for a divorce
The last things you need to decide are:
- Who will ask for the divorce
- What reasons they will give in the legal papers
In England and Wales, you can’t get divorced just because your marriage or civil partnership is no longer a happy one. You are only allowed to get divorced because your relationship has broken down and can’t be saved for one of five reasons. So you have to fit what happened in your relationship into one of those five reasons (the law calls these ‘facts’).
Similarly, you can’t ask for a divorce together – one of you has to divorce the other. This is difficult because it often feels like one of you is ‘blaming’ the other for the end of the relationship, and of course these things are rarely all one person’s fault (indeed, it’s often not really anybody’s fault). It is best to bear in mind that this is only for the divorce papers, and that there is no way for the person asking for the divorce to mention their own failings that may have contributed to the end of the relationship. Also remember that what you say when you ask for a divorce rarely makes any difference to how money or property will be divided, or where the children will live. Only you, your ex-partner, the court staff, and any lawyers you use will see the divorce papers.
The law refers to the person who asks for the divorce as ’the applicant’ and the other person as ‘the respondent’.
“It’s ridiculous that one of you has to ‘be divorced’ by the other. It felt like he was asking me to take all the blame for the end of the relationship. But you can’t write “we argue all the time and make each other unhappy”. My ex and I discussed flipping a coin for who would ask for the dissolution. In the end, we decided he would divorce me and we agreed that he would say I worked too much, stayed up too late, wouldn’t spend time with him or his friends, shouted too much, wasted our money, and didn’t do enough housework. It took all the hurt and anger out it.”
You don’t need to agree who will ask for the divorce and what they will say about the reasons, but it is best to if you can. It will help your divorce to move as smoothly and quickly (and cheaply) as possible, and removes the possibility of your ex-partner fighting the divorce which would complicate matters and make it far more expensive.
It is particularly useful to show a bit of sensitivity if you are using ‘behaviour’ as the reason for the divorce. It can all feel very hurtful when written down and people worry about how it looks (even though ordinarily only the people involved in the case see the papers). Use non-inflammatory wording and agree it beforehand if you can. It’s not always possible; sometimes people are too angry or upset to discuss it.
Another option is to make a separation agreement now and divorce based on two years’ separation with consent once you have lived apart for long enough. To do this you need to live apart for at least two years and your ex-partner must agree in writing to the divorce. This avoids the need to say anything about adultery or detail one person’s behaviour so can help keep things more amicable. We explain what a separation agreement is in 'Things to understand'.
Reasons for divorce or dissolution
This means that your husband or wife has had full sexual intercourse with a person of the opposite sex. If you go on living together for more than six months after you have found out about it you may not be able to use this reason, because you also have to show the court that you find it ‘intolerable’ to go on living together. You don’t name the other person like you did in the old days – it just complicates things. This reason is only available to married couples; you cannot end a Civil Partnership using this reason.
This used to be known as unreasonable behaviour, until a big divorce case in summer 2018, and so you may still hear people call it that. If you use this reason, you need to put down examples of your ex’s behaviour and explain the impact it had on you. You also need to say why it would not be reasonable for the court to expect you to stay married. There is no set number of examples you need to put in but you could aim for 5-8 examples. This is not to hurt your ex, but to meet the legal requirement so that the Judge who reads the application can approve it. Examples might include your ex refusing to spend time with you, spending money on things you couldn’t afford, or being verbally or physically abusive to you. About half of all divorce applications use this reason. If you feel happy to, it might be a good idea to talk to your ex about the examples you give before you send the form to the court. But, if you have been a victim of domestic abuse of any kind, it will probably not be sensible or even safe to do this.
This means that your ex-partner has left you against your will, and you have been living apart for at least two years. As you can get a divorce if you have been living apart for two years and you both agree, this reason is not used very often.
Two years separation, with consent
This means you have been living apart for two years and both agree to the divorce. During the period of separation, you can have had up to six months trying to live together again but it doesn’t count towards the two years. Even though you both agree to divorce, one person still has to divorce the other; you can’t ask the court for a divorce together.
Five years separation
If you can’t get your ex-partner to agree to a divorce and your situation doesn’t fit into the other reasons you may have to wait until you have been apart for five years and then use this reason. Your ex-partner may still be able to block it by trying to prove to the court that the divorce would cause gross financial or other hardship, but this rarely happens.
If you disagree with the reasons given for the divorce...
The person who didn’t ask for the divorce can refuse to agree to it. This is called ‘defending the divorce application’.
This doesn’t often happen because it is expensive and usually pointless. After all, it is virtually impossible to argue that your marriage or civil partnership hasn’t broken down when your partner has said it has. But there are some cases where the person who didn’t ask for the divorce feels so strongly that the marriage has broken down as a result of the other person’s actions, rather than their own, that they ask for a divorce too and give their reasons. This is called a ‘cross-application’.
However, in most cases, it’s better to allow the divorce to go ahead no matter how unfair the reasons given. This is because it is cheaper and it doesn’t really matter what reasons are given - it rarely affects arrangements for the children or how the money or property is divided, and usually the papers aren’t going to be seen by anybody not involved in the divorce.