Divorce: the legal issues

Alison March of Coyle White Devine Solicitors in Amersham (www.cwd-law.com) continues her advice on divorce and separation. Here she looks at the legal side, if other avenues haven’t worked.

Every case a solicitor deals with is different. So each case will have its own solution based on its own unique set of facts. However, the Court has to follow the Law and decisions that have been made in earlier cases. Every solicitor therefore will have those in mind when advising you.


The Law relating to children is governed by the Children Act 1989 and is the same whether the parents are married to each other, live together or are in a same sex relationship. This introduced the notion of residence, contact and parental responsibility, rather than the old fashioned custody and access. The emphasis is very much on the interest of the child being paramount and the Court will only make a decision if it is in the child’s best interest to do so. In the majority of cases the parents make their own arrangements and there is no need for the court to become involved. Essentially they just get on with it.

If the parents are unable to agree about who a child will live with, or how much time a child should spend with the non resident parent, an application can be made for a residence or contact order. In appropriate cases, the Judge will appoint a CAFCASS Officer who will meet with both parents and the children and file a report (usually a few months down the line) with recommendations. The recommendations are usually adopted by the Judge if the parents are still unable to make a decision.


There is one ground for divorce and that is that the marriage has broken down irretrievably. This can be for one of the following reasons:

  • Your spouse has committed adultery
  • Your spouse has behaved unreasonably.
  • You have been separated for two years and your spouse consents
  • Your spouse has deserted you
  • You have been separated for five years.

A solicitor will discuss the process in detail with you, but if the matter runs smoothly and the financial aspects are resolved without difficulty the divorce could be completed in 4 to 6months.

Financial Matters within a divorce

As part of the divorce it will of course be necessary to separate the family’s financial assets. The court has a checklist it has to go through to ensure that the children’s needs come first and that any order (or agreement) is fair.

Again, a solicitor will discuss your case in detail with you, but consideration needs to be given to:

  • The house. Usually the most important thing and in many cases the only asset of value. The court could transfer it to one party, order that it is sold or allow one parent to stay in it until the youngest child of the family is 18, or no longer in full time education. What happens in your case will depend on the facts of the case.
  • Savings. These could be retained by one party or divided, again depending on the facts of the case.
  • Pensions. These need to be looked into and a decision made as to whether each party will retain their own pensions or whether there needs to be an adjustment, such as a pension sharing order, if one party has a more valuable pension that the other.
  • Cars and Personal effects. Unless these are very valuable, the court would usually leave these in the possession of whoever they belong to. Solicitors will encourage parties not to argue over these as the potential costs often outweigh the value of the items in dispute.
  • Maintenance for the Children. If you are unable to agree a level of maintenance or if your partner is paying nothing at all, an application should be made to the CSA who will make an assessment. As a general rule, for non resident parents with a net income of over £200 per week, maintenance is calculated on a straight percentage with some adjustments if the non resident parent has another child living with them or has their own child staying over with them for more than 52 nights a year.
  • Maintenance for you. In most cases where there are young children, the wife would normally receive a maintenance order. In many cases, however, where a wife has her own reasonable income this will only be a nominal sum (£1.00 per year), the idea being that, if her circumstances changed she could ask the court to increase that sum upwards. In some cases, where the wife is working part time or is on a low wage, a husband can be ordered to pay a substantive amount to the wife. How much he pays will depend on the wife’s needs and the husband’s ability to pay. Maintenance would usually run until the youngest child is 18, and can be varied up or down over the lifetime of the order.


If your spouse or partner is violent or abusive to you, you may be able to apply to the court for a non molestation order (for personal protection) and possibly for an occupation order which could force your partner to leave the home for a specified period of time. Occupation orders are not easy to get and if you require advice on obtaining any form of injunction against your partner, the more detailed information you have the better.

Unmarried Families

The Law concerning children and injunctions is the same as for married couples. It is however very different in relation to financial matters. If you are not married to your partner, you cannot claim maintenance from them. They do of course have to pay maintenance for the children. You have no claim on any assets owned solely by your partner (except in rare cases regarding property) nor does he on yours. So, if he has a pension and you don’t you cannot make a claim on it.

If you jointly own things, most commonly the house, how they are divided depends on a number of factors including who contributed what to the purchase price and whether an agreement was drawn up at the time reflecting that. Unfortunately the situation is not always straightforward and specialist advice should be taken if this situation applies to you.

Financial Orders for the benefit of children

If you have children with your partner, you may be entitled to apply to the court (having tried the options listed above) for a capital sum or even a property for your children. This will depend on the financial situation of you and your partner and will not be appropriate in every case. Usually, the court will require a very good reason to require a father to pay a lump sum to the mother (it will be only for the benefit of the child and not for anything that the mother might require). If the Court orders the father to provide a property for the child, it would usually be transferred back into the father’s name once the child reached the age of 18 or finished their education. Once again, specialist advice should be taken.

Comments [2]

  • J sanders says:

    I’m frustrated that this article assumes the husband earns more money. I’m the primary breadwinner in our family but our relationship has utterly broken down. I never wanted to be and now I’m afraid that to escape him I will lose them due to my working hours and his lack of work. Who represents me?? How do I escape this relationship hold down my job and still see my children?

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