Established in 1982, at Brendan Fleming Solicitors we specialise in Family Law, offering our clients expert legal advice in both Public and Private Law matters, including Care Proceedings, Non-Accidental Injury, Divorce & Children’s Proceedings and issues with Social Services.

 

Contact Brendan Fleming Solicitors by emailing info@brendanfleming.co.uk or by calling 0800 246 5147

 

Contact our Non-Accidental Injury Department on 0800 246 5147 or 07730 143 432. If it is out of hours, you can call our staffed 24 hour helpline on 0121 683 5000. Alternatively you can email us on help@nonaccidentalinjury.co.uk

Our Location

165 Newhall Street
St. Paul’s Square
Birmingham B3 1SW

 

0800 246 5147

 

info@brendanfleming.co.uk

 

Divorce Solicitors in Birmingham

Separation

Deciding to divorce  or end your relationship by way of separation is often traumatic and rarely straightforward that’s where we come in providing you with the best legal advice and support so your separation goes as smoothly as possible.

 

The rules for unmarried couples who are facing separation are quite different from those for married couples. There seems to be a kind of urban myth that once a couple have lived together unmarried for a certain period of time that their rights and status as a couple becomes the same as for a married couple.

Despite a lot of pressure for reform of this point, sadly it is not the case under UK law that cohabitees have “marriage rights.”

If you are in a relationship which is breaking down and you are not married you really need to get professional assistance to guide you through the potential patchwork of different laws and to create a separation agreement for you to get the outcome you are hoping for.

 

If you have jointly owned asset and finances and especially if you have children together, you will need a competent solicitor to advise you through all the steps of a separation that you need to take to get the right agreements and outcomes for your family.

Call Annette and her team who will provide you with the best separation advice.

How to get a Divorce

In most cases, the emotional and mental turmoil connected with separation is what can make divorce difficult, especially with children and assets involved. This is completely understandable as it is something we take very seriously at Brendan Fleming Solicitors.

The filing of the petition itself consists of completing an official document in triplicate.

 

Once your spouse has been served, or files the acknowledgement of service, you will apply for Decree Nisi. It is then up to a judge to decide if you have adequate grounds for divorce. If so, the judge will issue the decree nisi. At this point you are still legally married. A decree nisi (from the Latin nisi, meaning “unless”) is a court order that does not have any force until a particular condition has been met, such as a subsequent petition to the court relating to other procedures or the passage of a specified period of time.

Once the decree nisi has been granted, you will be able to apply for Decree Absolute after 6 weeks and 1 day if you have been advised to do so which is dependent upon the financial issues. Shortly after this, the decree absolute should be issued. The decree absolute is a binding court order, which means at this point you are legally divorced.

We also know that costs are very important when making the decision to divorce and this is why we have always provided a fixed fee so that you know from the outset what your divorce will cost you and we are clear when it comes to our charges from the issue of the petition until the making of the decree absolute.

 

Speak to our family law team in Birmingham today.

Grounds For Divorce

The very first step in your divorce process will be proving that you have sufficient grounds for a divorce. This is a test which must be satisfied before you can proceed with filing your petition to divorce with the relevant family court.

The first aspect is one of time limitation: in England and Wales, a petition to divorce may not be submitted unless you have been married for more than one year.

With the time limitation satisfied you then need to prove you have “grounds for divorce.” In our country there is only one basis upon which a divorce may be approved and that is the “irretrievable breakdown” of your relationship.

There are five main ways a relationship can be considered to have broken down so much that it cannot be repaired – these are the reasons the Courts will accept. Only one of the below reasons is required:

1) adultery (please note that in the case of a same-sex marriage, this reason may only be cited where the adultery has occurred with a member of the opposite sex.)

2) unreasonable behaviour

3) desertion – for a period of no less than two years

4) lived apart for at least two years (with consent)

5) lived apart for at least five years (without consent)

If you are in any doubt about whether you have grounds for divorce or indeed which ground would be the most suitable then our solcitors can help you.

In the UK there are just five grounds for divorce. These grounds must be able to prove that the marriage has irretrievably broken down.

 

Adultery:

In the UK adultery is still defined as sexual intercourse between consenting man and women, one or both of whom are married to another person. It does not currently include same sex intercourse or any other form of sexual gratification. It also does not include unfaithfulness prior to marriage. In same-sex marriages, adultery still means sex with a member of the opposite sex.

To cite adultery as grounds for divorce you must not have lived with ex for more than 6 months after you found out about it. And, you found it intolerable to live with your spouse and this is your reason for living separately.

We generally advise not to name the 3rd party publicly, as it can have a negative effect on the best outcome for you.

 

Unreasonable Behavior:

Unreasonable behavior is cited for almost half of divorces in the UK and most “instant divorces.

The first point to understand is that irreconcilable differences is not grounds for divorce and does not automatically mean unreasonable behaviour. Two outcomes need to be shown:

  1. That the marriage has irretrievably broken down and
  2. That the husband or wife has behaved in unreasonably enough that the spouse finds it intolerable to live together.

Again, since the last act of unreasonable behavior you must not have lived together as husband and wife for more than 6 months and this has to be a reason for living separately.

Unreasonable behavior, is by far the most common ground for divorce cited in a divorce petition.

 

Desertion, Two years separation or Five years separation:

These are all time based – desertion means your spouse has left without your agreement, without a good reason and you must show that you have tried to prevent your partner leaving or have sought to reconcile during that period.

Two years separation is sufficient if both parties agree to divorce. You cannot defend a 5 year separation petition although you can apply to delay a Decree Absolute for various reasons including financial hardship.

It is important to understand that it is very rare for grounds for divorce cited to have any effect on dividing matrimonial property or with regards to arrangements with children. We can advise you as to whether or not this applies to you.

Decree Nisi & Decree Absolute

This is a document that confirms that the Court are satisfied that the marriage has broken down and can be finalised upon the making of a Decree Absolute.

 

Procedure

There is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as the “Petitioner” and his/her spouse is called the “Respondent”. To satisfy the Court that there has been an irretrievable breakdown the Petitioner must prove one of the following 5 facts:-

(a) The Respondent has committed adultery (this does not apply to same sex marriages)
(b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
(c) The Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately before the start of the divorce.
(d) The parties to the marriage have lived apart for a continuous period of at least 2 years immediately before the start of the divorce and the Respondent consents to a Decree being granted.
(e) The Parties to the marriage have lived apart for a continuous period of at least 5 years immediately before the start of the divorce.

 

Subsequent Procedure:

The Court will send copy of the petition to your partner together with an Acknowledgement of Service Form. This form must be completed and returned to the court which proves service of the Petition.

Defended divorces are rare but if a respondent indicates an intention to defend the petition then the form should be returned to the Court within 8 days. An Answer to the Petition will state that they object to the divorce or they dispute facts in it and this is done within 28 days of receiving the Petition. It is rare for divorces to be defended and extremely costly.

Should the Acknowledgement form not be returned then your partner may need to be served personally. Once the petition is served or an acknowledgement form received you can apply for your Decree Nisi. A date for this to take place will be fixed by the Court. This is the point at which the District Judge looks at your Petition and decides whether you are entitled to a divorce.

If an Answer to the Petition is filed you will not be able to apply for Decree Nisi immediately, instead upon application the Court will list a Case Management hearing to consider how the case should proceed.

Once the Decree Nisi has been pronounced you can make your application for the Divorce to be finalised six weeks afterwards and it usually takes 7 – 10 days for the Decree Absolute to be received. You should be consider taking advice from a divorce solicitor at matrimonial and whether you should withhold making an application for the Decree Nisi to be made Absolute until your financial matters have been resolved.

In all, the divorce can take as little as 4 – 6 months from start to finish. In some cases this takes longer if your divorce is defended or there are complex issues to resolve relating to financial and property matters.

Even when there are no financial property or pension issues to deal with and you have no issues regarding your children you should never proceed to finalise your divorce proceedings without taking expert advice even if you are both agreed on all matters, it important in all cases to reflect an agreement in a court order and to consider having a “clean break” order to ensure that neither of you can claim upon the other in the future if your financial circumstances change. You may be lucky and have a windfall such as a lottery win – consider how you would feel if your ex partner decided to make a claim after your divorce is final!

In all circumstances, we recommend speaking to one of our experienced team at BF Matrimonial. Call us on 0800 246 5147 today.

 

Separation:

If you would prefer not to divorce at this stage but wish to regularise your separation maybe to resolve issues relating to children or financial matters, there are two options available:-

1. Judicial Separation Petition
2. Separation Deed.

 

Judicial Separation
This involves a Court procedure which is virtually identical to that which applies to a divorce. The essential difference is that the Court pronounces a Decree of Judicial Separation rather than a Decree Nisi which means you would remain married.
This process is normally only used when the parties have religious or cultural objections to divorce which is rare but this process allows the court to use its powers to deal with financial matters.

 

Separation Agreement
Many couples prefer to reach an agreement about financial matters arising out of their separation without involving any Court procedures at all particularly if they agree to separate for 2 years and divorce in the future knowing that all financial and property issues have been agreed. The way that this can be achieved is for them to sign a written legal document which incorporates the agreement they have reached. Commonly, such agreements deal with confirmation that the Parties to the marriage are to live apart and the manner in which maintenance and all property matters are to be dealt with. An agreement can be reached regarding any sharing of pensions but remember that pension sharing cannot take place until the divorce is finalised and a consent Order is made reflecting the agreement. Whilst there are no restrictions on what can or cannot be included in such an agreement, it is important to bear in mind that should either person make a subsequent financial application to the Court, the Court is not necessarily bound by the financial arrangements contained in the Separation Deed but if both parties have had the benefit of independent legal advice then it is likely to uphold the terms of the agreement. You will need expert advice on the careful drafting of a Deed so that it can be relied upon in the future. The team at matrimonial have considerable experience in drafting these documents.

 

Cancelling Proceedings / Attempts at Reconciliation
Starting divorce proceedings does not mean that you cannot attempt to reconcile with your spouse, always provided that a Decree Absolute has not been applied for. A reconciliation period of less than six months only puts the divorce proceedings on hold, it does not stop them. If your reconciliation proves to be successful you will need advice from matrimonial as to the dismissal of the proceedings and the return of your Marriage Certificate. However, if you reconcile for more than 6 months and the marriage then breaks down again you would have to file a supplemental Petition or cancel the previous proceedings and start again. You will need expert advice on this procedure and should contact us at matrimonial on 0800 246 5147

Quickie Divorce

Typically, a divorce will take 4 to 5 months from issuing a divorce petition to obtaining the decree absolute. This is as quick as it gets whoever you choose to deal with your divorce for you. It is decree absolute which ends the marriage.

There is a compulsory delay of six weeks between decree nisi and decree absolute. Most of the rest of the delay is caused by delay in people returning the necessary paperwork or in waiting for the court to decide if the paperwork is in order and to fix a date for decree nisi.

 

A quick divorce always requires the co-operation of both parties.  If the other party cooperates and files an acknowledgement of service promptly then the process may be quicker, but a non-co-operative or hostile spouse can seriously slow down the time it takes to obtain decree absolute. Sometimes the other party cannot be found and as a divorce petition usually need to be served on the other party so again this could slow down the process and make it almost impossible to have a quick divorce. Such divorces take time and there are procedural steps to follow if your partner cannot be traced.

The process to obtaining a divorce is explained elsewhere on this site or you can contact one of our friendly team who will talk you through the process and time frames.

Uncontested Divorce

Our friendly and experienced team at Brendan Fleming will work with you to ensure your divorce proceeds uncontested so that the process is as painless and inexpensive as possible.

We take pride in dealing with the divorce process in a non-confrontational way as possible and always proceed in accordance with the pre-action protocol to avoid any issues as a defended divorce is that last thing that you will want as this just incurs delays, stress and exceptional costs. Such cases are very rare and if your marriage has broken down irretrievably then an uncontested divorce is the sensible way forward.

So that fees are transparent we also offer a fixed fee arrangement in all cases.

 

Do remember also that within your divorce proceedings that you and your spouse have rights to make financial claims against each other.

 

The most usual way to deal with these claims is by a Court Order either by consent or by issuing proceedings if mediation has not achieved an agreement.  Even where one or both do not wish to proceed with financial claims, maybe this is a short marriage or there are no assets such as a property or pension, an Order should be made dismissing all financial claims. This is known as a “clean break” Order. This avoids any claims being made in the future when there is possibly a windfall or lottery win that could still possibly be claimed against.

 

If an Order is not obtained, then the claims which each of them have against the other are simply left open.  This situation is unsatisfactory in that it creates a degree of uncertainty because it leaves the possibility of one spouse making a claim against the other at any time in the future unless they are caught in the “remarriage trap”.

 

Always seek advice within the divorce proceedings as to your position now and for the future.

Contact Us In Confidence

Arrange a consultation – 0800 246 5147. Or email us at info@brendanfleming.co.uk