Divorce & Separation

The breakdown of a relationship is one of life’s most stressful events. As well as emotional support, you may need to seek expert help and guidance to deal with any changes in your personal circumstances.

There are people who can help....

Irwin Mitchell

Irwin Mitchell is one of the UK’s largest and most respected law firms and we’re passionate about providing our clients with the best legal advice, guidance and support.

Stephensons

At Stephensons our clients are real people and they live and work in the real world - which at times can be an unpredictable place. Whatever it throws at them we're never far away to help, we're real people too and we understand our clients' needs.

Stephensons - Family Law and Divorce

At Stephensons our clients are real people and they live and work in the real world - which at times can be an unpredictable place. Whatever it throws at them we're never far away to help, we're real people too and we understand our clients' needs.

Family Law Partners

People have more choice than they might think when it comes to their family law situation. Family Law Partners actively encourage clients to explore alternatives to the court process. Our team of experts use models such as mediation, collaborative law and arbitration to find a solution that meets your needs.

Ashton KCJ

At Ashton KCJ, our aim is to be a firm you are proud to call ‘your solicitors’ and are happy to recommend to others. Whether you are a commercial client or an individual client, and whatever your legal needs, our focus is on always delivering first class legal advice with exceptional service.

Divorce financial settlement FAQs

Divorce financial settlement FAQs{{}}30 FAQs about divorce settlements.

  1. Does the reason for the divorce affect how the financial settlement is worked out?
  2. At what stage in our divorce do we need to agree a financial settlement?
  3. Will any payments I make to my spouse while we are separated affect the final divorce settlement?
  4. What effect will it have if I move out of the family home before we are divorced?
  5. Are there any precautions I should take during a divorce, for example, to stop my spouse taking cash from our joint account?
  6. How much maintenance is a former spouse entitled to?
  7. How can I protect my maintenance payments in case my former spouse dies?
  8. Can a man claim maintenance from his former wife?
  9. What happens if my former spouse refuses to pay maintenance?
  10. Is our divorce settlement affected if one of us remarries or starts cohabiting with a new partner?
  11. How much maintenance do I need to provide for the children?
  12. Do I need to provide maintenance for my former partner's children if I am not their father?
  13. Can I settle any financial claims once and for all when we divorce?
  14. Can we negotiate a divorce settlement without using lawyers or going to court?
  15. How long will it take to sort out our divorce and financial settlement?
  16. Who pays the legal fees in a divorce?
  17. Do we have to go to court to get our divorce settlement approved?
  18. Can I be forced to give up the home when we divorce?
  19. Can business assets be included in a divorce settlement?
  20. How are any assets held overseas treated in a divorce?
  21. Can assets held in a trust be taken into account in a divorce?
  22. What happens to a pension in a divorce?
  23. How do we deal with assets such as life insurance or endowment policies when we divorce?
  24. Can money one of us expects to inherit be taken into account when we divorce?
  25. Will a prenuptial agreement protect my assets if we divorce?
  26. What can I do if I find out my spouse has assets or income not disclosed when we agreed the divorce settlement?
  27. What can I do if I cannot afford the maintenance payments to my former spouse
  28. What is the tax treatment of sales or transfers of assets in a divorce?
  29. Are maintenance payments to or from a former spouse taxed?
  30. Should I make a new will after a divorce?

1. Does the reason for the divorce affect how the financial settlement is worked out?

Very rarely. In general, any financial settlement should be fair and give priority to the welfare and needs of any children. Behaving badly or committing adultery does not affect this. Behaviour may, of course, affect any agreement over who looks after any children and what contact is allowed.

Extreme behaviour may be taken into account, for example, if one partner's violence has had a lasting effect on the other. If one partner recklessly or deliberately sabotages the financial position, for example, by spending recklessly or destroying assets, this could also be taken into account.

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2. At what stage in our divorce do we need to agree a financial settlement?

At any time before or after you divorce, although it is advisable to do so before either partner remarries.

It is usually best if you can negotiate a settlement prior to the divorce. The court can then be asked to make any relevant financial orders at the same time as granting the decree nisi (when the court agrees that grounds for divorce have been proven, though there is a further delay before the decree absolute finalises the divorce).

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3. Will any payments I make to my spouse while we are separated affect the final divorce settlement?

Not usually. It may be unwise to make excessively large payments to your spouse, because it might be argued that this shows both their need for such payments (or an equivalent transfer of assets) and your ability to pay.

Even so, any financial settlement should take into account the longer-term history of the marriage and future financial prospects.

On the other hand, if your spouse needs maintenance while you are separated, it would normally be sensible to provide it. Failure to do so is likely to make your spouse more hostile towards you.

Your spouse might apply to the court for an interim financial order requiring you to pay an appropriate level of maintenance. Both of these are likely to increase the overall level of ill feeling - and costs - in reaching a final agreement.

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4. What effect will it have if I move out of the family home before we are divorced?

You will still have the same rights to occupy the home as you had before and can move back in if you choose.

There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need - such as important documents - with you in the first place.

There may also be other considerations so it is advisable to take advice before moving out.

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5. Are there any precautions I should take during a divorce, for example, to stop my spouse taking cash from our joint account?

If your spouse can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken. You will also be jointly liable for any debts run up on the account.

If you need access to the money or if you suspect that your spouse may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card.

However, if you suddenly freeze accounts that your spouse needs for living expenses, this will create problems. Your spouse will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.

If your spouse is the sole owner of the family home, you should apply to the Land Registry to register an interest in the property. This will prevent the house being sold without your consent.

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6. How much maintenance is a former spouse entitled to?

It depends on the circumstances. Factors to be taken into account include:

  • each partner's needs, assets and ability to earn income;
  • the standard of living before the break up of the marriage;
  • how long you have been married and how old you are;
  • any special needs such as a disability;
  • the contributions each spouse made to the marriage (eg by looking after the home and bringing up children).

If, for example, two young people divorce after a brief, childless marriage, it might be fair for them to each walk away with the assets they brought into the marriage, with neither paying the other maintenance.

On the other hand, suppose a couple have been married for 30 years, with the wife bringing up the children and looking after the home while the husband worked. A fair financial settlement might award the wife half the joint assets, including half her husband's pension entitlement and a significant proportion of her husband's income until he retires.

This would reflect the value of the wife's contribution to the marriage as a homemaker and the fact that she would not now be in a position to suddenly start earning a large income.

If there are children, their needs - including maintenance - are dealt with separately as a priority.

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7. How can I protect my maintenance payments in case my former spouse dies?

You could take out a life insurance policy on your former spouse's life. As part of the financial settlement, you can negotiate that your former spouse pays the premiums on this policy. If your spouse is paying maintenance for your children, you can also arrange insurance to cover these payments until your children are grown up.

You may want to consider other forms of maintenance insurance, depending on your former spouse's circumstances. For example, you could face problems if your former spouse is made redundant or can no longer work for some reason.

Alternatively, you may negotiate a 'clean break' settlement so there is no maintenance in the first place.

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8. Can a man claim maintenance from his former wife?

There is no reason why a man should not be able to claim maintenance, for example, if the woman is a high-earner. A fair settlement should take into account the same factors regardless of gender.

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9. What happens if my former spouse refuses to pay maintenance?

If your spouse has not been paying maintenance or has been paying maintenance on a voluntary basis, you will need to go to court to apply for a financial order. You can apply for an order at any time before or after the divorce, provided you have not remarried.

If there is already an order in place requiring your spouse to pay maintenance, but he or she fails to do so, you can go back to the court to ask them to enforce payment. For example, the court might issue an attachment of earnings order, so that your former spouse's employer automatically pays you. You should take urgent legal advice if your spouse stops paying maintenance.

If you look after your children and your spouse is refusing to pay child maintenance, you can contact the Child Maintenance Service.

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10. Is our divorce settlement affected if one of us remarries or starts cohabiting with a new partner?

If you remarry without having reached a financial settlement with your former spouse, you may lose the right to make any financial claim against them. He or she will still have the same right to make a financial claim against you as before.

If you have previously reached a clean break settlement, the remarriage (or cohabitation) will normally have no effect - you have already made a once and for all agreement.

If you are paying your former spouse maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit).

In any case, if your former spouse's financial position improves, you can apply to the court to stop paying maintenance or to pay a reduced amount.

If you are receiving maintenance from your former spouse, you should normally continue to do so after he or she remarries.

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11. How much maintenance do I need to provide for the children?

The welfare of the children - including providing them with a home - is a priority. Normally, this applies only to children aged 16 and under, aged 20 or under and still in full-time education (but not higher than A-level or equivalent) or aged 20 or under where the parent is still receiving child benefit.

The courts can, however, require you to provide maintenance to older children who are still in full-time education or who have special needs.

Families are normally expected to make their own private arrangements for child support. If you cannot agree how much should be paid, the Child Maintenance Service can work out what payment is due. The Child Maintenance Service can also get involved in enforcing payments.

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12. Do I need to provide maintenance for my former partner's children if I am not their father?

If you have both been treating a child as if he or she is your own, the child is a 'child of the family' and you might have financial obligations.

If you separate, the child might continue to live with either parent, and the other parent could be ordered to pay child maintenance. For example, your former spouse could ask the court to order you to provide maintenance for your stepchildren and to continue paying for anything you paid for before you divorced such as boarding school fees. The court would take into account the ability of the child's natural parents to provide financial support.

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13. Can I settle any financial claims once and for all when we divorce?

In many cases, yes. For example, a spouse who would have paid maintenance to the other can instead agree to transfer an appropriate lump sum and/or other assets. Of course, this may not be possible if sufficient assets are not available.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

However, it is not possible to agree a 'clean break' in respect of your obligation to provide maintenance for your children.

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14. Can we negotiate a divorce settlement without using lawyers or going to court?

You may be able to negotiate agreement among yourselves, without lawyers. However, if there are significant assets involved, it is worth taking legal advice to make sure that your interests are being protected.

Your lawyer can advise on whether your proposed agreement is fair. Your lawyer can also advise you on the best way of structuring an agreement, for example, trading off property, assets, pension rights, maintenance and so on.

In practice, a good solution is often for the two parties to start by sitting down together to negotiate informally. Depending on the relationship and the complexity of the issues to be covered, you may want to involve your lawyers or a trained mediator.

Ideally, this will allow you to reach broad agreement, leaving the lawyers to tidy up the details and paperwork. Even if you cannot reach agreement immediately, you will at least know what the problem areas are.

Where possible, it is best if you and your spouse can agree a settlement between yourselves, taking into account your individual preferences. If the court is asked to impose a settlement, it may come up with a solution that suits neither of you.

However, if your spouse is being unreasonable, you may want to apply to the court to resolve the dispute rather than simply allowing negotiations to drag on indefinitely. Take advice on the best way to approach this.

In any case, once you have reached agreement you should ask the court for a consent order.

Any settlement, if it is to be binding, will require both partners to give full disclosure of their respective circumstances.

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15. How long will it take to sort out our divorce and financial settlement?

Obtaining a divorce typically takes about six to eight months. This includes a six-week delay from the date of the decree nisi (when the court agrees that the grounds for the divorce have been proven) to the decree absolute (after which you are divorced).

The process can take longer if anyone fails to deal with the various pieces of paperwork promptly or your lawyer advises to delay applying for a decree absolute.

Reaching a financial settlement is a separate matter. How long this takes depends very much on your relationship with your spouse and the complexity of your financial affairs.

Often, the financial settlement can be negotiated over the same period as the divorce proceedings, and is then confirmed by a consent order. Even where this is not the case, it is normally possible to reach a financial settlement in a matter of months rather than years.

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16. Who pays the legal fees in a divorce?

While negotiating a financial settlement you each use - and are responsible for paying - your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees.

You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile spouses insist on conducting all negotiations through lawyers while arguing over trivial details.

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17. Do we have to go to court to get our divorce settlement approved?

You do not have to get a settlement approved by the court, but unless you get a consent order, either of you will be able to change your minds. To get any form of clean break, you must have a court order.

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18. Can I be forced to give up the home when we divorce?

If there are no children, the aim is to reach a fair financial settlement. Whether you can retain the home will depend primarily on how many other assets you have between you and what your individual preferences are.

If you have plenty of money, you might agree that one of you will keep the home but the other will receive a correspondingly large share of other assets. If your resources are more limited, you may need to agree to sell the home so that you can each buy a smaller property.

Where there are children the situation becomes more complex. The welfare of the children requires them to have a home where they can live with whichever parent will continue to look after them.

If you have plenty of assets, it might well be ideal if the children stay in the family home while the other parent buys another home to move into. If assets are less abundant, it might make sense to sell the family home so that two cheaper homes can be bought.

The problem becomes more difficult when assets are more limited. The children and the parent living with them may want a large proportion of the assets, leaving the other parent with very little. However, a court would be unlikely to consider a very one-sided agreement to be fair.

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19. Can business assets be included in a divorce settlement?

Yes. However, a family business is often looked at as something which produces an income - that can be used to provide maintenance - rather than just as an asset to be shared or sold.

There is no presumption that the individual who has built up the business has a greater claim to the business assets. The other partner's contribution to the marriage, for example, by looking after the home and children, might be considered to be equally large. Depending on the circumstances, this might mean that each partner could claim entitlement to about half the value of the business.

In many circumstances, it is possible to agree a settlement that allows the business to continue. For example:

  • one partner could retain ownership of the business and pay maintenance out of the business income;
  • the individual who will retain ownership of the business could borrow against the value of the business to provide a lump sum for the other partner;
  • the business could be split into two separate businesses.

Where possible, courts try to avoid ordering a financial settlement that results in the break-up or liquidation of a business.

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20. How are any assets held overseas treated in a divorce?

Assets held overseas can be taken into consideration in the same way as any other assets.

In practice, a spouse may seek to hide overseas assets or transfer assets overseas to make them more difficult to recover. If you suspect that your spouse is doing this, take immediate legal advice.

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21. Can assets held in a trust be taken into account in a divorce?

It depends on the circumstances. Divorcing parties must disclose any trusts from which they benefit or expect to benefit, and the value of these benefits can be taken into account. There can be a grey area where the trustees of the trust have discretion over who will benefit.

If one of the spouses in a divorce has previously placed assets into trust, these assets might also be taken into account. Clearly, this will be the case if the spouse who put the assets into trust is a beneficiary of the trust.

It may also be possible to make a claim against the trust if it can be shown that the assets are still under the settlor's control or that the settlor created the trust once the marriage started to break down to shelter assets from a claim.

Trust law is complex. You should take advice if you wish to place assets into trust or discuss what claim you might have against assets held in trust.

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22. What happens to a pension in a divorce?

Your pension is a marital asset, like your home and other assets. The value of your pension can be taken into account in deciding a fair settlement.

Practical solutions can include:

  • offsetting the value of one spouse's pension fund by transferring a lump sum, or other assets, to the other spouse;
  • splitting the pension fund into two separate pension funds, one for each spouse;
  • arranging that when a pension comes to be paid, a proportion of it is paid to the other spouse.

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23. How do we deal with assets such as life insurance or endowment policies when we divorce?

Life insurance and endowment policies are taken into account when agreeing a fair settlement. You should agree how each policy will be handled, whether premiums will continue to be paid for regular contribution policies, and whether the beneficiaries of any life insurance cover will be changed.

You may choose to retain individual policies or to sell (or surrender) them. Any policies in joint names will normally be sold or transferred into one individual's name.

Early surrender of a policy may result in a sharp fall in the expected value of the policy; any surrender, sale or transfer may also have tax consequences. Take advice on the best option in your circumstances.

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24. Can money one of us expects to inherit be taken into account when we divorce?

Usually not unless you are about to receive the inheritance.

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25. Will a prenuptial agreement protect my assets if we divorce?

The basic principle is that a financial settlement should be fair, based on factors such as the individual needs of the partners and the welfare of any children.

Where assets are sizeable you should certainly consider having a prenuptial agreement. For example, you might be able to use a prenuptial agreement to provide at least some protection to assets that you bring into the marriage (as opposed to assets that you build up during the marriage).

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26. What can I do if I find out my spouse has assets or income not disclosed when we agreed the divorce settlement?

You can go to court to get the financial settlement altered.

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27. What can I do if I cannot afford the maintenance payments to my former spouse?

You can go to court to ask them to change the maintenance order to reflect your circumstances. For example, you might do this if you lose your job and cannot find another one.

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28. What is the tax treatment of sales or transfers of assets in a divorce?

Assets transferred between spouses are exempt from capital gains tax (CGT). This exemption continues to apply during the tax year in which the spouses separate (regardless of the date when any divorce is granted).

Thereafter, any transfer will normally be treated as a sale at market value and subject to CGT (if the CGT annual exemption level is exceeded). However, the transfer of the family home to the spouse who still lives in it will continue to be exempt from CGT in most circumstances. The transfer of a property as part of a divorce settlement is also exempt from stamp duty.

Transfers of assets between spouses are exempt from any potential inheritance tax liability. This usually continues to be the case for any transfer made after divorce as part of a financial settlement.

Tax rules are complex, so take advice on the best way to minimise the tax consequences of your divorce.

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29. Are maintenance payments to or from a former spouse taxed?

If you are over 70 years old, very limited tax relief is available on maintenance payments you make, and only if you are legally required to make them. Younger maintenance payers do not qualify for tax relief.

No income tax is due on maintenance payments you receive.

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30. Should I make a new will after a divorce?

Usually yes. When you get divorced, your former spouse is automatically excluded from your will as either a beneficiary or executor (this is not the case if you have merely separated). Unless you draw up a new will, this can have undesired consequences.

For example, your original will might have been drawn up on the assumption that your spouse would take care of the children using the money left to him or her.

With the former spouse excluded from the will, you might now want to arrange an appropriate trust to hold the inheritance for the children. More broadly, you may want to alter the way assets are shared among the various beneficiaries.

If you want your former spouse to continue to be a beneficiary, you must draw up a new will. In some cases, the financial settlement you agree when you divorce may require one or both of you to make provision in your will for your former spouse and any children. This might be appropriate, for example, if you are paying continuing maintenance.

Note also that if your former spouse remains dependent on you, in some circumstances it may be possible to challenge your will if it does not make adequate provision for him or her. Your own wishes are more likely to be followed if you draw up a new will that takes this into account.

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Prenuptial agreement FAQs

Prenuptial agreement FAQs{{}}10 FAQs people ask about prenuptial agreements.

  1. I'm getting married soon - should I have a prenuptial agreement?
  2. We don't own very much - is there any point in us making a prenuptial agreement?
  3. What should a prenuptial agreement cover?
  4. Isn't it rather unromantic to make provision for the marriage failing? How can I raise the subject of a prenuptial agreement with my partner?
  5. Do I need a solicitor to make a prenuptial agreement?
  6. If we decide to make a prenuptial agreement, can we both use the same solicitor to save costs?
  7. How much will it cost to make a prenuptial agreement?
  8. Our prenuptial agreement is over five years old - should we review it?
  9. If we do break up, will the prenuptial agreement automatically apply or could my spouse challenge it?
  10. Apart from a prenuptial agreement, are there any other legal matters I should think about before getting married?

1. I'm getting married soon - should I have a prenuptial agreement?

A prenuptial agreement or 'prenup' is a written agreement you make before your marriage (or before registering your civil partnership). The prenuptial agreement sets out what should happen if you divorce (or dissolve your civil partnership).

Take advice about a prenup if:

  • you already have substantial assets and you want to keep those out of the reckoning if your marriage breaks down;
  • you have been married or a partner in a civil partnership before and are taking property into the marriage that you want to keep separate for your own children;
  • there is an international aspect to the marriage, so that you might find financial awards made against you in the courts of more than one country.

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2. We don't own very much - is there any point in us making a prenuptial agreement?

Usually not, unless there is an international aspect to your marriage or civil partnership. But could your circumstances change? What if your business takes off or a rich relative leaves you a substantial bequest in their will?

You may prefer to cross that bridge when you come to it, rather than asking your partner to sign a prenup now, but it's worth thinking about these possibilities.

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3. What should a prenuptial agreement cover?

Your prenup should cover:

  • how assets such as money, shares, pension, etc are to be divided;
  • what will happen to your house(s) - who will be entitled to live where;
  • any ongoing payments (maintenance) to be paid to the other and for how long;
  • any maintenance to be paid for the children;
  • where there is an international aspect to the family (for example, you own homes in more than one country or you and your partner are of different nationalities), the country where the divorce proceedings will take place.

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4. Isn't it rather unromantic to make provision for the marriage failing? How can I raise the subject of a prenuptial agreement with my partner?

Many take the view that divorce is always a possibility. It can be a sensible precaution to discuss unpleasant possibilities in an open and frank manner, just as you have to do when you make a will. Just identifying an issue can stop it being a problem later.

Getting married or forming a civil partnership revokes your will, if you have one. Even if you do not, you will want to make sure your spouse or partner is provided for if you die. So you should talk about a will with your solicitor before you marry or register your partnership anyway.

Take the opportunity to discuss with your solicitor how to raise the issue of a prenuptial agreement too - it can sometimes be more diplomatic if your solicitor raises it.

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5. Do I need a solicitor to make a prenuptial agreement?

Yes. It is unlikely that a court would follow a prenuptial agreement unless you had both had proper legal advice on its effect.

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6. If we decide to make a prenuptial agreement, can we both use the same solicitor to save costs?

No. It is important that each of you receives independent legal advice. Without it, the court will give less (or possibly no) weight to the prenup.

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7. How much will it cost to make a prenuptial agreement?

Fees for drawing up a prenup are typically based on how much work is involved, so it depends on your circumstances. For example, whether there are children from previous marriages or civil partnerships, whether there is an international element, the amount and nature of your assets, etc.

Typical costs can be anything from £500 upwards. Your lawyer should be able to give you an estimate.

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8. Our prenuptial agreement is at least five years old - should we review it?

A prenuptial agreement must be reasonable and fair. Ensure you check with your solicitor every time there is a significant change in your circumstances, such as the birth of a new child, which might affect the award a court would make if you divorced or separated.

Also check with your solicitor from time to time, to make sure that the law (or its interpretation by the courts) has not changed in such a way that the prenup stops being considered fair.

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9. If we do break up, will the prenuptial agreement automatically apply or could my spouse challenge it?

Prenuptial agreements are not automatically enforced by the courts, but they are increasingly influential when the court is deciding an appropriate financial award in divorce proceedings.

You are likely to be better off with a prenup than without one.

Particular areas to look out for are:

  • The agreement must have been made a reasonable time (preferably at least 21 days) before your marriage or the registration of your civil partnership. If it was made immediately before, the court will be concerned that one of you might have put pressure on the other.
  • In all other respects it must have been made without either of you imposing any pressure or duress on the other.
  • Each of you must have been given the opportunity to receive independent legal advice on the contract.
  • Each of you should have given the other full and frank details of your financial circumstances.
  • The terms of your agreement should be fair (although this concept is difficult to define).

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10. Apart from a prenuptial agreement, are there any other legal matters I should think about before getting married?

Yes:

  • If either of you has made a will, it will become void when you marry or form a civil partnership, unless it has specifically been made in anticipation of the marriage or registration of the civil partnership. So you will probably need to make new wills.
  • If either of you has not already made a will, you are strongly advised to do so. If you die without making a will, it is the law that decides who gets what if you die, not you or your spouse or partner - and there are plenty of other disadvantages to not having a will.
  • If either of you has been married or a partner in a civil partnership before, your new marriage or civil partnership might affect your previous divorce settlement. Take advice.

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Divorce FAQs

Divorce FAQs{{}}30 FAQs people ask about divorce and separation.

  1. When people divorce, what surprises them most about the divorce process?
  2. What do I need to prove to get a divorce?
  3. What types of unreasonable behaviour are valid grounds for divorce?
  4. Won't listing unreasonable behaviour in a divorce petition make our relationship worse?
  5. Do we have to be living apart to get divorced or can we still be living in the same house?
  6. How long do I need to have been married before I can get divorced?
  7. Do we have to try mediation or counselling before applying for a divorce?
  8. Do I have to use a solicitor to get divorced?
  9. What information will my solicitor need to help me get divorced?
  10. How does the divorce process start?
  11. Does it make any difference who starts the divorce proceedings?
  12. Does it make any difference who caused the divorce?
  13. How does the divorce process work?
  14. Do we have to go to court in person to get divorced?
  15. What happens if my spouse refuses to get divorced?
  16. If we change our minds, can we stop the divorce going through?
  17. How much is getting divorced likely to cost?
  18. Can either of us get legal aid to pay for our lawyers in a divorce?
  19. How long does it take to get divorced?
  20. What if my spouse is being completely unreasonable during divorce negotiations?
  21. What can I do to stop things turning nasty while we are negotiating the divorce?
  22. The divorce is my spouse's fault and I want revenge - how can I make things as difficult and painful as possible?
  23. If I leave the family home during divorce negotiations, can I get back in?
  24. If I leave the family home during divorce negotiations, will this put me in a weaker position?
  25. Do we have to agree what will be happening to our children before the divorce can go through?
  26. Do we have to agree a financial settlement before the divorce can go through?
  27. When am I officially divorced and is there an official record of it?
  28. Who do I have to notify that I am divorced and what documents will they want to see?
  29. Which courts deal with divorce?
  30. We are foreign nationals and got married overseas - can we get divorced in England?

1. When people divorce, what surprises them most about the divorce process?

Many people are surprised that the financial settlement is so unpredictable and so open to negotiation. There are no benchmarks and no formula to show what a typical outcome for a typical situation is. It is common for the divorcing couple to have different ideas about what is fair, so predicting the outcome of any financial settlement may be difficult.

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2. What do I need to prove to get a divorce?

You need to show that the marriage has irretrievably broken down. You do this by establishing any one of the following:

  • Adultery.
  • Unreasonable behaviour.
  • Desertion (for at least two years).
  • Two years' separation and agreement to the divorce from both spouses.
  • Five years' separation.

Incompatibility or 'irreconcilable differences' are not acceptable grounds for divorce. However, in these circumstances it may be possible to establish unreasonable behaviour (eg by failing to adequately respond to a spouse's emotional needs).

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3. What types of unreasonable behaviour are valid grounds for divorce?

You can get a divorce if your spouse has behaved in such a way that you cannot reasonably be expected to live with them. This can include such things as violence, threats, verbal abuse, alcohol or drug related behavior, and gambling and other financial irresponsibility. But less dramatic issues can also be valid grounds, such as disrespectful or undermining behaviour, or lack of a sex life, lack of emotional support or lack of interest in your career. It is common to list five grounds of unreasonable behavior, with one or two examples of each.

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4. Won't listing unreasonable behaviour in a divorce petition make our relationship worse?

If a matrimonial order application for divorce is based on unreasonable behaviour, it has to set out details. Yes, this can be upsetting and, in some cases, offensive. It is best to try and agree the particulars before the matrimonial order application is sent to the court. Some couples even decide to wait for two years' separation before divorcing, to avoid the acrimony that the unreasonable behavior documentation process can lead to.

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5. Do we have to be living apart to get divorced or can we still be living in the same house?

If you are getting divorced because of adultery or unreasonable behaviour, you can be living together in the same house. However, if you continue living together for more than six months after finding out about the (most recent) incident of adultery or unreasonable behaviour, you are unlikely to be able to use it as the basis for a divorce.

If you are getting divorced because of desertion, clearly, one spouse must have left the home.

If you are getting divorced on the basis of separation, you must have been living separately. It is possible to do this while remaining in the same house, as long as you do not continue to live as a couple (you should be sleeping separately and each doing your own household chores). In practice, though, one spouse usually moves out when a couple separates.

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6. How long do I need to have been married before I can get divorced?

You must have been married for at least one year before you can get divorced.

If your marriage breaks down before you have been married for a year, you may want to separate in the meantime, and to agree issues such as financial arrangements and who will look after any children.

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7. Do we have to try mediation or counselling before applying for a divorce?

Divorcing couples are usually expected to consider mediation before starting court proceedings. This involves having a 'Mediation information and assessment meeting' (MIAM) to help you understand and consider the process.

You are not legally required to try mediation or counselling, but they can have advantages.

Counselling services tend to focus on the emotional side of the break-up, and can be particularly useful if only one partner wants to get divorced. By helping you to understand each other's feelings, counselling may take some hostility out of the break-up, making it easier to negotiate an agreement. In some cases, by identifying the underlying problems, counselling may encourage you both to give the marriage a second chance.

Mediation involves a skilled mediator helping you and your spouse to negotiate an agreement on issues such as financial arrangements and childcare. A skilled mediator can help you to work together to reach an agreement that you both feel is fair. This may provide a less confrontational approach than communicating through your solicitors from the outset, and can help to reduce your costs.

Whichever approach you take, you should still consult your solicitor before reaching any final agreement.

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8. Do I have to use a solicitor to get divorced?

If the divorce involves children or any significant amount of money or other assets, you are strongly advised to use a solicitor. They can:

  • advise you on what your rights are and what would be a reasonable financial settlement;
  • help you negotiate agreement on financial arrangements and how any children will be looked after;
  • make sure that court documents are correctly completed and filed on time.

Although your solicitor can advise you, it's still up to you to choose how to use the solicitor. For example, you and your spouse might try to reach a preliminary agreement between yourselves or use a mediation service.

Because a solicitor cannot act for both spouses, you should each have your own solicitor.

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9. What information will my solicitor need to help me get divorced?

Your solicitor needs to understand the background to the divorce, what financial assets are involved, and whether there are any children. The information you provide should include:

  • on what basis you are planning to get divorced (eg adultery, unreasonable behaviour or separation);
  • which of you will be applying for the divorce and whether you have both agreed that you should divorce;
  • what you and your spouse's major assets are, such as savings, pensions, houses etc;
  • what you and your spouse's income and outgoings are;
  • details of any dependent children (under the age of 18, still in full time education, or having special needs).

The more information you can provide, the easier it is for your solicitor to understand the circumstances and to advise you. Your solicitor can ask your spouse's solicitor to provide details of any important information you cannot provide, but this will tend to increase delays and costs.

At the same time as providing your solicitor with this background information, you should also let your solicitor know what your major objectives are, for example, ensuring that the children stay with you (or that you have reasonable contact with them), staying in the family home and so on.

Separately, if you are not already known to the solicitor, you will need to provide evidence of your identity, for example, your passport and latest bank statement.

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10. How does the divorce process start?

The divorce process can involve up to three separate elements:

  • the divorce itself - the ending of the marriage;
  • agreement on the financial arrangements, such as how the assets will be divided and whether any maintenance will be payable;
  • agreement on the arrangements for looking after any dependent children.

At the first meeting, your solicitor is required by a code called the Family Law Protocol to consider a number of issues and may need to discuss some of them with you. These include the prospects of reconciliation, possible referral to a family dispute resolution service, whether there is a danger of children being taken abroad, the possibility that there has been abuse, whether there is a need to limit access to joint bank accounts and credit cards, the need to register rights of occupation of the family home at the Land Registry, and many more.

The process of divorce itself starts when the 'petitioner' - either you or your spouse - files a divorce petition with the court. The petitioner's solicitor normally completes the required documents.

The financial arrangements can be agreed separately at any time - before you start divorce proceedings, at the same time, or after the divorce itself has been finalised - though the financial arrangements cannot be finalised until after the decree nisi.

If you have dependent children, if possible you should agree between yourselves how they will be looked after. Otherwise, the court may have to become involved in determining the arrangements for the children.

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11. Does it make any difference who starts the divorce proceedings?

It should make no difference to the final outcome which one of you starts the proceedings.

In practice, there may be circumstances that make one or other spouse want to be the 'petitioner' rather than the 'respondent':

  • If only one spouse wants the divorce, they will be the one who files for divorce. More broadly, the petitioner's solicitor tends to drive the divorce process, for example, chasing up the respondent's solicitor if documents have not been returned on time.
  • If the divorce is because of adultery, unreasonable behaviour or desertion, the aggrieved party must petition for the divorce.
  • A spouse who has religious objections to divorce may prefer to be the respondent.

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12. Does it make any difference who caused the divorce?

In general, it makes no difference to the outcome either in terms of the financial agreement or the arrangements for looking after the children. However, where one spouse has been guilty of seriously unreasonable behaviour - eg violence towards the other spouse - this may have consequences.

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13. How does the divorce process work?

Once the 'petitioner' has filed for divorce, a copy of the documents is sent to the 'respondent'. The respondent is also asked to return an acknowledgement of service, confirming that the documents have been received and stating whether he or she intends to defend the divorce.

Provided that the divorce is not being defended, the petitioner then swears an affidavit confirming that all the details on the documents are true. A judge then considers the paperwork and decides whether the facts relied upon in the petition have been made out and show that the marriage has broken down irretrievably. In particular, the judge will want to be sure that satisfactory arrangements will be made for any dependent children.

Provided that you have reached a reasonable agreement, the judge should set a date when a 'decree nisi' will be given. Six weeks after that, the petitioner can apply for the decree nisi to be made absolute. Once the decree absolute has been granted, you are divorced (and free to remarry should you wish).

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14. Do we have to go to court in person to get divorced?

If you and your spouse both agree to get divorced, and can reach a reasonable agreement between yourselves on finances and looking after any dependent children, you should be able to get divorced without going to court in person.

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15. What happens if my spouse refuses to get divorced?

Your spouse can defend a divorce by claiming that the facts relied on in the petition are not true, for example, that they did not commit adultery or that you have not been separated for five years. This could mean that you have to delay your divorce, unless you can petition for divorce on a different basis, for example, demonstrating that the marriage has irretrievably broken down and that your spouse's behaviour has been unreasonable. At worst, this might mean that you have to separate from your spouse for five years before you can get divorced.

In fact, defending a divorce in this way is not common. What is more common is for an aggrieved spouse to make the process of getting divorced more difficult, expensive and drawn out. For example:

  • Your spouse may fail to respond to court documents, delaying the process and increasing your costs.
  • Your spouse may state that he or she intends to defend the divorce, which delays proceedings even if ultimately the divorce is not defended.
  • Negotiations on childcare and financial arrangements can be drawn out, particularly if every point has to be argued out through your solicitors.
  • Your spouse may ask the court to intervene in deciding financial and childcare arrangements. In some cases, it may not be possible to finalise the divorce until these have been agreed.

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16. If we change our minds, can we stop the divorce going through?

In the eyes of the law you are still married up until the moment when the decree absolute is pronounced, finalising the divorce. The petitioner can stop the divorce proceedings at any point prior to that.

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17. How much is getting divorced likely to cost?

The divorce process can involve up to three separate elements:

  • the divorce itself - ie the ending of the marriage;
  • agreement on the financial arrangements, such as how the assets will be divided and whether any maintenance will be payable;
  • agreement on the arrangements for looking after any dependent children.

The costs of the divorce itself include court fees (although it may be possible to obtain exemption from these fees if you are on a low income) and your solicitors' charges. In a straightforward case where the divorce is not contested, the solicitors' charges are likely to be in the region of £750 plus court fees and VAT. You can negotiate how these costs are shared between you as part of any financial settlement.

In addition, your solicitor will advise you on negotiating financial terms and arrangements for any children. The more involvement your solicitors have in such negotiations, the more those additional costs will increase. If you cannot negotiate agreement yourselves and have to ask the court to make rulings, costs will rise. Protracted disputes can result in very substantial costs.

It is not therefore possible to state in general terms how much these costs are likely to be as they will depend on the circumstances of the case. However, your solicitor will give you an indication of the likely costs once the circumstances are known and may be able to offer a fixed-price service if the divorce is likely to be straightforward.

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18. Can either of us get legal aid to pay for our lawyers in a divorce?

Save for a small number of cases, for example, where domestic violence has been a significant feature, legal aid is not available for divorce and family cases.

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19. How long does it take to get divorced?

A relatively straightforward divorce typically takes six to eight months, provided that you both deal with the court papers promptly. It may be possible to speed this process up, for example, if you want to get remarried as soon as possible - though costs will increase.

In practice, negotiations over financial arrangements can take longer than this. However, it is usually possible to get divorced before a financial agreement has been finalised - your solicitor will advise you whether this is a bad idea.

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20. What if my spouse is being completely unreasonable during divorce negotiations?

If you are still on speaking terms, try to remain calm and sympathetic. If you can, make sure your spouse realises that the longer negotiations continue, the higher the costs - leaving less for either of you. If you have children, bitter negotiations will also impact on them.

Although you may feel your spouse is being unreasonable, you should try to reach agreement without involving the court (and added court costs). An experienced solicitor can advise you if the negotiations are going so badly that going to court would be a more cost-effective route.

If you do have to apply to the court, it will set a court-driven timetable - the possibility of your doing so may help your spouse to focus on the issue.

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21. What can I do to stop things turning nasty while we are negotiating the divorce?

Unsurprisingly, divorce negotiations often become adversarial, particularly if one spouse feels wronged or betrayed. If you are instigating the divorce, for example, because you have fallen in love with someone else, you may want to consider counselling. Even if you have made up your mind to get divorced, this - and the passage of time - can help your spouse to come to terms with what is happening.

Similarly, it is a good idea to try to negotiate a preliminary agreement between you on how finances will be dealt with, and the arrangements for any children. You may want to investigate using some form of mediation to help with this. Simply handing things over to your solicitors before you have agreed anything can increase the likelihood that negotiations will be difficult.

As far as possible, you should consider discussing what is going to happen next with your spouse, and perhaps negotiating the wording of any documents you are going to file with the court; for example, if you are going to file a petition setting out details of unreasonable behaviour.

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22. The divorce is my spouse's fault and I want revenge - how can I make things as difficult and painful as possible?

Divorce proceedings are generally traumatic and expensive enough without trying to make them worse. A responsible solicitor will not deliberately aggravate what is already a difficult situation. Making things difficult can also result in costs out of all proportion to the financial assets involved, and may distress you - and any children - as much as your spouse.

You should be aware that if your unreasonable behaviour results in increased court costs and legal fees, the court could require you to pay both your own and your spouse's costs.

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23. If I leave the family home during divorce negotiations, can I get back in?

While you remain married, the family home is a matrimonial asset and you are entitled to enter it.

Of course, there could be practical difficulties if, for example, your spouse decides to change the locks. So it makes sense to make sure you take any important documents, clothing and so on with you if you leave.

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24. If I leave the family home during divorce negotiations, will this put me in a weaker position?

Leaving the home should not prejudice any final settlement.

It could, however, put you in a weaker negotiating position if it undermines your financial situation; for example, if you have difficulty paying the rent in your new accommodation and therefore want to negotiate the sale of the house as soon as possible.

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25. Do we have to agree what will be happening to our children before the divorce can go through?

You do not have to reach a final agreement before you can be divorced. But in practical terms, you will need to sort out what is going to happen once you and your ex-spouse live in separate homes. The longer you leave it to reach an agreement, the more likely it is that the court will have to become involved.

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26. Do we have to agree a financial settlement before the divorce can go through?

No. However, it is usually advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the decree absolute (the order finally ending your marriage) is made. Such important entitlements as pension rights can be lost in certain circumstances once the decree absolute is granted.

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27. When am I officially divorced and is there an official record of it?

You are officially divorced once the decree absolute is granted. The grant of the decree is officially recorded (in the court where the divorce was granted and in the Principal Registry of the Family Division of the courts in London) and you are each sent a copy.

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28. Who do I have to notify that I am divorced and what documents will they want to see?

Anyone who needs to know about your marital status. For example:

  • You should notify your employer, particularly if you have any health benefits, pension scheme or other employment related benefits which may be affected.
  • If you are receiving benefits, you should notify the Department for Work and Pensions. (In fact, you may need to notify them earlier if you separate, as this can affect some benefits.)
  • If you have joint arrangements - such as joint bank accounts or memberships - you should inform the organisation concerned. (Again, you may have already taken steps such as cancelling any joint credit cards.)
  • A woman who wishes to revert to her maiden name (or a previous married name) should notify organisations such as banks and government departments.
  • You should conduct a financial audit to ensure any insurance or other policies have the correct beneficiaries.
  • You should consider making an up to date will if you have not already done so.

A copy of the decree absolute (or in some cases, the original certificate) is generally all the documentary evidence that you need to provide.

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29. Which courts deal with divorce?

Divorce and other family law disputes are dealt with by the Family Court.

Routine aspects of divorce such as uncontested divorces are dealt with in regional divorce centres. Contested divorces and cases where a hearing is needed are often dealt with at a more local Family Court.

You can find your local Family Court online.

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30. We are foreign nationals and got married overseas - can we get divorced in England?

You can get divorced in England provided that at least one of you has been habitually resident in England for the year leading up to the date when you file for divorce.

You can also get divorced in England if one or both of you are 'domiciled' in England, even if you are not resident here. For example, an English expatriate working overseas will usually continue to be domiciled in England if he or she intends to return here rather than emigrating permanently.

It is important to be aware that you or your spouse may be entitled to file for divorce in another country - such as your home country - as well. There may be advantages to one or other of you for the divorce to be handled in a particular country, so you should take early advice.

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Cohabitation and cohabitation agreement FAQs

Cohabitation and cohabitation agreement FAQs{{}}24 FAQs people ask about cohabitation and cohabitation agreements.

  1. What legal status does a common law spouse have?
  2. Wouldn't drawing up a cohabitation agreement harm our relationship?
  3. What should a cohabitation agreement cover?
  4. Should our cohabitation agreement include relationship rules, such as who does the housework?
  5. Can we use an informal cohabitation agreement or does it need to be a legal document?
  6. Is a cohabitation agreement legally enforceable?
  7. Will a cohabitation agreement have any effect if we later get married?
  8. What is the legal position if my partner and I live in a property that one of us owns?
  9. How can I ensure that my rights in relation to a property I share with my partner are legally enforceable?
  10. What is the legal position if my partner and I live in rented property?
  11. How is ownership of possessions affected if my partner and I live together?
  12. Are assets my partner and I buy together automatically jointly owned?
  13. How do shared expenses affect how assets are divided if my partner and I break up?
  14. How can I ensure that my partner and I are not liable for each other's debts?
  15. What rights and responsibilities do I have for my partner's children?
  16. How can I give my partner the same rights and responsibilities for my children as a natural parent?
  17. How can my partner and I protect ourselves in case one of us suffers from major long-term illness?
  18. How can I ensure that my partner inherits if I die, with any inheritance tax minimised?
  19. Can I ensure that my partner is entitled to my pension and any other company benefits if I die?
  20. How often should my partner and I review our cohabitation agreement?
  21. How are cohabitation agreement disputes resolved?
  22. Is the legal position on cohabitation likely to change?
  23. Is the legal position on cohabitation the same for gay and heterosexual couples?
  24. Is there any advantage to registering a civil partnership?

1. What legal status does a common law spouse have?

A 'common law spouse' has no special legal status. You are either married (or in a civil partnership) or not. The situation used to be somewhat different in Scotland but isn't any longer (though cohabiting couples do have some basic rights if their partnership ends).

If a relationship breaks down, being a 'common law' wife or husband does not give you the right to claim against your ex-partner for maintenance or a share of their assets. However, it may be possible for a parent to make a claim on behalf of a child they continue to look after.

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2. Wouldn't drawing up a cohabitation agreement harm our relationship?

Not if you approach it in the right way. Avoid looking at the cohabitation agreement as a way to protect yourself if the relationship breaks down or as a lack of faith in longevity of the relationship. Instead, use drawing up the cohabitation agreement to work through key issues in your lives together. Handled sensitively, this should strengthen your relationship.

In some relationships, one partner has the most income or assets. If the cohabitation agreement is designed solely to protect their financial position if they split up, the other partner may resent it. On the other hand, an agreement that provides some financial protection for the less wealthy partner can increase their sense of security and happiness within the relationship.

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3. What should a cohabitation agreement cover?

Financial issues are key to a cohabitation agreement. It should include what rights each partner has regarding property you live in, who owns other assets and who is responsible for any debts. It's also common to explain how expenses will be shared while you live together.

Where you have children, either jointly or with a previous partner, the cohabitation agreement should also address this.

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4. Should our cohabitation agreement include relationship rules, such as who does the housework?

You may want to discuss such issues while preparing the cohabitation agreement. For example, if one partner works and the other looks after the home, you might want this reflected in the way you agree financial issues should the relationship break down. You might agree that the 'house-partner' would be entitled to a share of assets or maintenance, as happens in divorce or the dissolution of a civil partnership.

It is sensible to state how expenses will be shared. However, it is not generally wise to include rules on behaviour, partly because it would be very difficult to specify exactly what is being agreed in legally enforceable wording (what housework must be done, to what standard, etc). Attempting to include such rules is likely to undermine the agreement's clarity and enforceability. Instead, deal with such issues between yourselves. If you have to call in a lawyer every time someone leaves the washing up, your relationship is in trouble!

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5. Can we use an informal cohabitation agreement or does it need to be a legal document?

An informal cohabitation agreement will almost certainly not be legally enforceable. Some aspects may also need to be supported by legal documentation: for example, to ensure that your partner inherits in the event of your death.

More broadly, preparing a formal agreement provides a useful framework for considering all the areas that need to be addressed.

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6. Is a cohabitation agreement legally enforceable?

A cohabitation agreement is a contract between you both. To be legally enforceable, it must have been made with the intention of having legal force – the agreement can say so. The document should detail what you are agreeing. It must also be 'executed as a deed', signed in the presence of witnesses.

Even so, a cohabitation agreement may not be enforceable if it is unfair. To maximise the chances that it is enforceable, you and your partner should both take independent legal advice. You must also be open about your individual financial positions when you enter into the agreement.

Finally, you should note that the agreement will not overrule other legal rights and requirements. This is particularly the case if children are involved.

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7. Will a cohabitation agreement have any effect if we later get married?

If you get married (or register a civil partnership), your cohabitation agreement might be taken into account by the court if you later divorce (or dissolve your civil partnership).

A better solution is for the cohabitation agreement to specifically state that it automatically comes to an end if you get married. If, at that time, you want to have a similar agreement, you can draw up a prenuptial agreement.

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8. What is the legal position if my partner and I live in a property that one of us owns?

There are several possibilities:

  • One of you might be the sole owner and not want the other to have a share in it. The non-owner would normally have no rights to remain if asked to leave by the owner.
  • One of you might be the sole owner but now want the other to have a share in it.
  • You own the home together as a 'joint tenancy'. When one of you dies, the other automatically inherits the home.
  • You own the home as 'tenants in common'. Each of you owns a stated percentage of the home. For example, you might choose percentages that reflect how much each of you contributed to the purchase price. You can each leave your share of the home in your will to your partner, or to anyone else.

You should ensure that your cohabitation agreement clearly states what you have agreed. You may also need to draw up an appropriate deed to put this into effect.

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9. How can I ensure that my rights in relation to a property I share with my partner are legally enforceable?

Ensure that what has been agreed is written into the cohabitation agreement. You may also need to draw up an appropriate deed of trust, setting out your rights to the property and what will happen if you split up. Make sure your wills clearly state what will happen when either of you dies.

Normally, appropriately drafted documents of this kind will ensure that your rights and wishes are respected. However, the situation can be more complex if there are (non-adult) children involved. They have rights that cannot be overruled by an agreement between you and your partner. For example, if you break up and your partner will continue to look after the children, he or she might be able to apply to the court for an order allowing them to continue living in the property, even if you are the sole owner.

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10. What is the legal position if my partner and I live in rented property?

If you are joint tenants, you have equal rights and responsibilities.

Problems can arise where the tenancy is in only one name. The other partner will not normally have any rights to stay in the property if asked to leave by the named tenant, though it may be possible to apply to the court for short-term protection from this.

If the named tenant dies, the other partner will usually have the right to take over the tenancy. This may not be the case, however, for same-sex couples unless they have registered a civil partnership or it is specifically permitted by the tenancy agreement.

In any case, the best solution is often to convert a sole tenancy to a joint one. This can be done if the existing named tenant and the landlord both agree.

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11. How is ownership of possessions affected if my partner and I live together?

Unless you have agreed otherwise:

  • if you owned something before you started living with your partner, you still own it;
  • if you buy something with your own money, it belongs to you alone;
  • if you are given something or inherit it, it belongs to you alone;
  • if you buy things together, they are jointly owned.

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12. Are assets my partner and I buy together automatically jointly owned?

When you buy something together, it will normally be jointly owned, but not necessarily equally:

  • If you purchase the asset using a joint bank account, it will normally be owned in equal shares. If your cohabitation agreement states that you each own a different share of the joint account (such as 60/40), you will each own that share of the asset.
  • If you purchase an asset together, but pay separately, you will normally own the same proportion of the asset as the proportion of the price you paid.

If you choose, your cohabitation agreement can set out different rules. For example, you could agree to own everything equally regardless of who pays for it, or you could agree to treat specific named assets differently.

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13. How do shared expenses affect how assets are divided if my partner and I break up?

Ownership of assets is normally determined by who paid for the assets rather than overall contribution to joint living expenses. You can, however, include different rules in your cohabitation agreement.

If either partner contributes to the costs of buying and maintaining the home you live in, this is likely to give them a claim to own a share of the home. If you intend the property to be solely owned by one of you, the cohabitation agreement should clearly state that any financial contribution made by the other partner is a payment towards general living expenses and not for the home.

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14. How can I ensure that my partner and I are not liable for each other's debts?

Normally, you will only be liable for your partner's debts if you agree to be: for example, by borrowing money in joint names or by giving a personal guarantee.

Regardless of what you have agreed, both the utility companies and the council have the right to pursue both partners living in a home for unpaid utility and council tax bills.

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15. What rights and responsibilities do I have for my partner's children?

If you are the child's natural parent, you automatically have a financial responsibility for that child.

The child's natural mother automatically has parental responsibility for the child. This means, for example, that you can choose your child's name, how the child is brought up and so on. You also have the right to look after the child's property on their behalf (until the child becomes 18).

You, as the child's natural father, also have parental responsibility if:

  • you are registered on the child's birth certificate as the father (for births registered from December 2003 onwards);
  • you re-register the child's birth, with the mother's consent, adding your name as the father;
  • you marry the child's mother (either before or after the child's birth);
  • you make a parental responsibility agreement with the mother and have it witnessed by the court;
  • you apply to the court for a parental responsibility order (if the mother refuses to enter into a parental responsibility agreement with you) or a child arrangements order.

If you are not the natural father of your partner's child, you do not have any automatic rights or responsibilities. You can apply to the court for a child arrangements order giving you parental responsibility.

Note that if your relationship breaks down, both partners have the right to ask the court that the child should live with them or that they should have access, regardless of whether they have parental responsibility. The court will decide what is in the child's best interests.

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16. How can I give my partner the same rights and responsibilities for my children as a natural parent?

You must apply to the court for a child arrangements order. Normally, this requires the consent of anyone who already has parental responsibility for the child. If, for example, you were married to the child's natural father and he is still alive, you will need his consent. The court will also need to be satisfied that the child arrangements order is in the child's best interests.

It may also be possible to get a child arrangements order without the consent of another individual with parental responsibility, provided the child has been living with your partner for three of the last five years, or if the court gives you permission. But getting a child arrangements order can be difficult and expensive if someone with parental responsibility opposes your application.

If you cannot get a child arrangements order (or feel that it would be too difficult), an alternative is to appoint your partner as the child's guardian. This helps to ensure that your child stays with your partner if you die, unless another individual with parental responsibility disputes this.

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17. How can my partner and I protect ourselves in case one of us suffers from major long-term illness?

Like any other couple, you should make appropriate financial arrangements. The best solution will depend on your circumstances. For example, if one of you is the major earner, you may want to take out insurance in case that person can no longer work.

If you want your partner to take responsibility if you become incapable of making decisions, draw up a lasting power of attorney to that effect.

You may each want to consider drafting a 'living will' expressing your preferences should you become terminally ill. This can include a statement that you would like the doctors to consult your partner if appropriate. You may also want to ensure that your partner is named as your next of kin, for example, on any medical forms. While neither of these steps will necessarily have legal effect, in practice they should help to ensure that medical staff treat your partner as if they were your spouse.

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18. How can I ensure that my partner inherits if I die, with any inheritance tax minimised?

Unlike married couples or couples in a civil partnership, your partner will not automatically inherit. You must have made a will saying what you want your partner to inherit. Make sure this protects your partner's right to continue living in your home (assuming that you want this).

If your estate's value is above the threshold, your partner will be liable to inheritance tax. There are numerous ways you can minimise this liability. For example, you can own the home jointly (so that only half the value of the home falls into the deceased partner's estate) or you can make use of 'potentially exempt transfers' by gifting assets while alive. Inheritance tax planning can be complex and you should take advice.

The most effective way to reduce inheritance tax is to marry or register a civil partnership. Any assets your spouse or civil partner inherits are automatically free from inheritance tax.

If there are children, consider whether you want assets to pass to them, rather than to your partner. For example, if you own the house (or part of it), you could leave it to the children, but give your partner the right to live in it until death. Otherwise, the house will be part of your partner's estate when they die, and could be liable to inheritance tax again.

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19. Can I ensure that my partner is entitled to my pension and any other company benefits if I die?

Your partner's entitlement to your pension will depend on the pension scheme's rules. Some schemes offer benefits to an unmarried partner. Similarly, your employer may extend benefits such as health insurance to unmarried partners. Consult your employer's HR department/manager or pension scheme trustees to find out the rules. Where appropriate, tell them of your wish that your partner should benefit if you die.

If you are not married or in a registered civil partnership, your partner is not entitled to any state pension benefits or bereavement allowances based on your National Insurance contributions.

Note that if you are arranging a private pension (or other benefits such as life insurance), ensuring that your partner is also covered will increase the cost substantially

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20. How often should my partner and I review our cohabitation agreement?

It is good practice to review your cohabitation agreement every five years, or whenever there are any major changes in your circumstances - in particular, when a child is born.

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21. How are cohabitation agreement disputes resolved?

It is good practice to include a dispute-resolution procedure in your cohabitation agreement. For example, you might agree to try mediation rather than going to court.

In any case, it is almost always better to negotiate a resolution, rather than going to court where costs can become very high.

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22. Is the legal position on cohabitation likely to change?

It has become increasingly common for couples to cohabit rather than marry and it is generally accepted that the current legal position is far from ideal. We may see changes to the law over the coming years.

It is a good idea to review your cohabitation agreement periodically, even if your circumstances have not changed, to ensure that it is still appropriate given any changes in the law.

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23. Is the legal position on cohabitation the same for gay and heterosexual couples?

Not always. For example:

  • If you live in accommodation rented in your partner's name, you will not usually have the right to take over the tenancy if your partner dies unless you have formed a registered civil partnership or it is specifically allowed by the tenancy agreement.
  • Some private pension schemes (and other financial arrangements) will not cover same-sex couples unless they have formed a civil partnership. Employers, however, are not allowed to discriminate on the basis of sexual orientation. If your employer offers benefits that cover unmarried partners, these must also be offered to gay couples.

You can, however, use an appropriate cohabitation agreement, wills and so on in the same way as a heterosexual couple.

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24. Is there any advantage to registering a civil partnership?

Only same-sex couples can register a civil partnership. This gives them similar rights and responsibilities to those of a married couple. For example, civil partners have a duty to provide reasonable maintenance for their partner (and any children). They are also treated in a similar way regarding benefits, pensions and so on.

Same-sex partners also have the option to get married (except in Northern Ireland).

Registering your relationship may well be a good way of helping to protect your partner. For example, a registered partner is in a stronger position if you die without leaving a will naming them as your inheritor. However, it will still make sense to prepare a cohabitation agreement and other appropriate documentation (such as a will).

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Restraining orders and injunctions FAQs

Restraining orders and injunctions FAQs{{}}15 FAQs people ask about restraining orders and injunctions.

  1. What is the difference between a restraining order and an injunction?
  2. Can I get a restraining order against my abuser even if they were not found guilty?
  3. Can I get an injunction or restraining order even if there hasn't been any actual domestic violence?
  4. What is a domestic violence protection notice?
  5. What is a domestic violence protection order?
  6. Can I get an injunction to stop my partner threatening me or my children?
  7. How can I protect myself against abuse when we share a home?
  8. My abusive partner is threatening to take our child away if I complain - what can I do?
  9. How long does an injunction to protect me against domestic abuse last?
  10. How long does it take to get an injunction against an abuser?
  11. What sort of evidence do I need to get an injunction after domestic abuse?
  12. How much does it cost to get an occupation order or a non-molestation order?
  13. How can I protect myself against domestic violence if I cannot afford a solicitor?
  14. What good is a restraining order or injunction when I know my abuser will just ignore it?
  15. What happens if my abuser breaches an injunction or restraining order?

1. What is the difference between a restraining order and an injunction?

Restraining orders and injunctions are both types of court order that tell someone not to do something. For example, if you are a victim of domestic violence you might want a court order to help protect you from your abuser.

The main difference is that a restraining order is issued at the end of a criminal case, but you can ask the court for an injunction even if someone has not been charged with a criminal offence.

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2. Can I get a restraining order against my abuser even if they were not found guilty?

A court can issue a restraining order at the end of a case even if the defendant was not convicted. The court can do this if the evidence shows that a restraining order is necessary to protect someone from harassment.

Even if the court does not issue a restraining order (or if there has not been a criminal trial at all) you can make an application for a protective injunction.

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3. Can I get an injunction or restraining order even if there hasn't been any actual domestic violence?

Protective orders can be used to deal with any form of domestic violence or abuse. As well as physical or sexual abuse, this can include psychological or emotional abuse, and a range of different controlling or coercive behaviours.

As well as protection against violence, threats or harassment, injunctions can be used to give you the right to stay in the family home (for example, if your partner is not letting you in) and to order your partner (or other family members) to keep away.

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4. What is a domestic violence protection notice?

A domestic violence protection notice can be issued by a police officer if you have been a victim of domestic violence and the officer thinks it is necessary to protect you from further violence or threats.

A domestic violence protection notice acts like a temporary restraining order. The notice can prohibit your abuser from entering or being near your home (or other places such as where you work), or from forcing you to leave the home you share, or from contacting you or your children.

A domestic violence protection notice is only temporary. The abuser will be summoned to court within 48 hours (except at weekends) where a domestic violence protection order can be issued.

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5. What is a domestic violence protection order?

A domestic violence protection order is like a temporary restraining order that helps protect victims of domestic violence from further violence or threats. The order can keep your abuser away from you and your children, and stop them forcing you to leave the home you share.

Unlike an injunction - which you apply for - a domestic violence protection order is applied for by the police. It lets them help you when there isn't (yet) enough evidence to charge your abuser with a crime.

A domestic violence protection order is only temporary, lasting between 14 and 28 days. But this gives you time to sort out what other steps you want to take, such as finding somewhere else to live or applying for a longer term injunction.

In the meantime, if your abuser breaches the terms of a domestic violence protection order, they can be arrested.

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6. Can I get an injunction to stop my partner threatening me or my children?

You can apply to the court for a non-molestation order. This can require your partner not to use violence, threaten or intimidate you (or your children).

An injunction cannot guarantee that the abusive behaviour will stop, but an abuser who breaches the terms of a non-molestation order can be arrested.

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7. How can I protect myself against abuse when we share a home?

You can apply for an occupation order. This prohibits your abuser from coming near or entering your home. You might also apply for a non-molestation order at the same time, prohibiting your abuser from violence or threats towards you.

You can apply for an occupation order if you are a tenant or owner of the home (either on your own or as a joint owner or tenant). You can also apply for an occupation order if you are or were married to, in a civil partnership with or cohabiting with the owner or tenant. So you can apply for an occupation order even if your abuser is the only tenant or owner of the home.

The court will need to weigh up the effects of the occupation order on you, your partner and any children before deciding whether to grant the order.

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8. My abusive partner is threatening to take our child away if I complain - what can I do?

As long as you have parental responsibility for the child, you can apply for a prohibited steps order. The prohibited steps order can prohibit your partner from taking the child away, though it may not prevent all contact between your partner and your child.

You have parental responsibility automatically if you are the child's natural mother. A father who was married to the mother when the child was born, or is named as the father on a birth certificate (after December 2003) also has parental responsibility. Step-parents and unmarried fathers only have parental responsibility if there has been a parental responsibility agreement or order.

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9. How long does an injunction to protect me against domestic abuse last?

Injunctions are typically granted for a set period - often six to 12 months - though they can be indefinite. Injunctions can also be renewed.

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10. How long does it take to get an injunction against an abuser?

It typically takes a week or two to get an injunction, but you can apply for an injunction to be granted on the same day if you are at immediate risk of significant harm.

If the court grants an injunction without notice, you will have to go back to court later for a hearing once the abuser has been given notice. He or she will then have the opportunity to present their side of the story if they wish.

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11. What sort of evidence do I need to get an injunction after domestic abuse?

You should try to put together as much evidence as possible about the abuse you have suffered. This can include physical violence, threats, emotional abuse and so on.

Try to keep a record yourself of specific incidents - what happened, when. It will help if you also have independent evidence, for example from your doctor, the police and other people who have witnessed incidents of abuse.

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12. How much does it cost to get an occupation order or a non-molestation order?

Solicitors' fees vary depending on how much work is involved, but costs of around £2,000 are fairly typical.

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13. How can I protect myself against domestic violence if I cannot afford a solicitor?

The first step you should take, whether or not you can afford a solicitor, is to call the police - either on 999 if you are in immediate danger or on 101. The police take domestic violence seriously, and can arrest an abuser, issue a domestic violence protection notice, put you in touch with other sources of help and so on.

If you are on a low income, you may also qualify for legal aid. This can help pay for a solicitor to advise you, apply for an injunction and so on. The National Centre for Domestic Violence (0800 970 2070) can offer free help getting an emergency injunction.

You should also think about the practical steps you can take - for example, whether there are friends you could stay with or whether to seek help from a refuge. There is a 24 hour National Domestic Violence Helpline (0808 2000247) and many local organisations offer support and advice.

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14. What good is a restraining order or injunction when I know my abuser will just ignore it?

Some abusers will respond positively to a protective order, recognising that it is time to change their behaviour and that they could face more serious consequences if they continue as they are.

Unfortunately, others will ignore it - or even consider it as a challenge to their power over their victim. In these circumstances, you need to think about other steps you can take to protect yourself (and any children). For example, you might need to consider moving to a refuge if that is the only way you can be safe.

Over time, continued breaches of protective injunctions will lead to an abuser being imprisoned, but it can be a difficult and frightening process for you. As well as involving the police and taking legal action, you will want to get as much support as possible from family, friends and support organisations.

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15. What happens if my abuser breaches an injunction or restraining order?

In most cases, they can be arrested.

What happens after that will depend on the circumstances. The court will consider whether the breach was a one-off or part of a planned pattern of continued abuse, the effect it has had on you and so on. The abuser can be fined, given community service or a suspended sentence, or given a prison sentence of up to five years. If the abuser is shown to have been violent, you can normally expect them to be imprisoned.

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Divorce and children FAQs

Divorce and children FAQs{{}}21 FAQs about children following divorce or separation.

  1. What happens when we separate or divorce if only one of us is the child's parent?
  2. What are the rules for adopted children and foster children if we separate or divorce?
  3. Do we have to get a court order saying what will happen to the children when we divorce?
  4. How can we work out a fair arrangement for our child when we divorce or separate?
  5. How can we resolve the arrangements for our children quickly when we divorce or separate?
  6. How does a judge decide which parent a child will live with when we separate?
  7. Can a child live part-time with each parent after a divorce or separation?
  8. If circumstances change will I be able to change the arrangements we agreed for our child when we divorced?
  9. What rights do I have to see and contact a child living with my former spouse or partner?
  10. Do I have the right to see a child living with my former spouse or partner on special occasions, such as birthdays and Christmas?
  11. Do other members of my family have a right to contact with a child of mine living with my former spouse or partner?
  12. What can I do if my former spouse or partner will not let me see the children?
  13. Can I stop my former spouse or partner seeing my child?
  14. Can I have a say in how my children are brought up even if they live with my former spouse or partner?
  15. Can I stop my children who live with my former spouse or partner being taken to live abroad?
  16. How can I stop my ex's new partner replacing me in my child's eyes?
  17. What can I do if my former spouse doesn't want to have any involvement with the children?
  18. How are maintenance payments for my children worked out when we separate or divorce?
  19. What can I do if my former partner doesn't pay the agreed child maintenance?
  20. How can I protect my child's financial interests when I divorce or separate?
  21. How can we minimise the upset our separation or divorce proceedings cause our children?

1. What happens when we separate or divorce if only one of us is the child's parent?

If you have both been treating a child as if he or she is your own, the child is a 'child of the family'. If you separate, the child will usually continue to live with the natural parent but this is not always the case. The step-parent could be ordered to pay child maintenance but usually only if the other parent is failing to provide for the child. The key issue is the child's best interests.

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2. What are the rules for adopted children and foster children if we separate or divorce?

Adopted children are treated in the same way as natural children.

Foster children are not 'your' children. Often any foster children would be removed from your care if you are going through a separation or divorce, but this would be a matter for the local authority that placed the child with you rather than the courts.

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3. Do we have to get a court order saying what will happen to the children when we divorce?

No. In many cases, a divorcing couple will simply agree among themselves what will happen. If you cannot agree among yourselves you may need to involve the court.

There are restrictions on taking a child out of the country and changing a child's name unless it can be agreed between you.

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4. How can we work out a fair arrangement for our child when we divorce or separate?

Your primary concern should be the child's best interests, but you will of course want to take into account your own circumstances and feelings.

There are many different models for sharing care of a child, from the child living with one parent and seeing the other at weekends, to the child dividing their weekly time between their parents more equally. Which is right for your family depends on your circumstances: whether you both work; where you both live; and who has historically been the children's primary carer.

Financial arrangements should be put in place to provide for the child's support. Separate financial arrangements should also be made for the division of the family assets and any spousal maintenance payments from one of you to the other.

Keep in mind that the child's needs may lead to an apparently unfair arrangement. For example, in many divorces one parent and the child continue to live in the family home, while the other parent has relatively limited time with the child, lives in inferior accommodation and pays continuing maintenance. This may be an inevitable consequence of the priority that must be given to the child's welfare.

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5. How can we resolve the arrangements for our children quickly when we divorce or separate?

Ideally, you should reach agreement among yourselves. This can be done quickly.

If one parent is stalling, it may be worth pointing out that resolving matters quickly is in the children's best interests, and that financial issues - which may underlie any dispute - can be dealt with separately.

Even if parents cannot resolve matters among themselves, a family mediation service can help to provide a solution. This can be faster and more cost-effective than going to court.

Otherwise, you must apply for appropriate court orders covering who a child will live with, what contact rights the other parent will have and any specific issues or prohibitions.

The court process involves various stages, starting with a mediation information and assessment meeting to see if mediation can help. Again, the process will be quicker if the parents can reach agreement during the initial appointment.

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6. How does a judge decide which parent a child will live with when we separate?

The key consideration is the child's best interests. The court will take into account various factors, including the child's own wishes and each parent's ability to look after the child.

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7. Can a child live part-time with each parent after a divorce or separation?

Yes. The parents can agree this among themselves.

However, if parents cannot agree among themselves, either parent can apply to the court to make an order determining the issue.

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8. If circumstances change will I be able to change the arrangements we agreed for our child when we divorced?

You can apply to the court. If it considers that a change is in the child's best interests, it can grant an appropriate order.

In practice, it would be unusual for the court to order that a child who has been living with one parent for some time should now live with the other. More commonly, you might go to court to get an order covering a particular issue, such as where the child should be educated or to enforce your rights to see the child.

The financial arrangements for the child's maintenance can be changed to reflect changes in the parents' circumstances. This is usually dealt with by the Child Maintenance Service rather than the court.

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9. What rights do I have to see and contact a child living with my former spouse or partner?

You can reach agreement between yourselves on contact rights. This can include visits to the child in the home, taking the child out during the day, overnight stays and telephone calls.

If you cannot reach agreement, you can apply to the court for a child arrangements order (previously known as a contact/residence order). The court's decision is based on what the court thinks is in the child's best interests, which will almost always include some time spent with each parent. Typically, you might be granted regular weekly (or fortnightly) contact and longer time in the holidays.

In some circumstances, it can be more difficult to obtain extensive contact rights. For example, if you have not been in contact with the child for a significant period of time since you separated, the court might want to minimise the disruption to the child's established routine. It is also likely to be difficult if your child says that he or she does not want to see you, particularly if the court feels the child is old enough to make an informed decision.

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10. Do I have the right to see a child living with my former spouse or partner on special occasions, such as birthdays and Christmas?

It is normal to agree that the 'non-resident' parent should have the right to see the child on special occasions. The other parent is usually expected to agree that you should be able to see the child for occasional longer periods, such as during an annual holiday. Specific contact rights for special occasions can be included in a contact order.

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11. Do other members of my family have a right to contact with a child of mine living with my former spouse or partner?

They do not automatically have any rights to see your child. However, the court may allow them to apply for a contact order. As long as the court considers this to be in the child's best interests, the application is likely to succeed. It depends on whether your time with the child is expected to include other members of your family.

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12. What can I do if my former spouse or partner will not let me see the children?

If you have not already been granted a child arrangements order, you can apply to the court for one.

If your former spouse or partner continues to stop you seeing a child despite a court order, you can go back to the court. This often ivolves proving specific breaches of the order which can be difficult. The court can then take action against your former spouse (or partner) for breaching the order. The court can impose a fine or a work placement order or imprison your ex. Depending on the circumstances, the court can be reluctant to do this, as it may not be in the child's interests.

This means that enforcing your contact rights can be a drawn-out and distressing process. You may need to return to court several times and keep careful evidence of how your ex is frustrating your attempts to have the agreed contact with your child. Ultimately the court can change where the child lives if they feel that one parent is preventing the child seeing the other parent, but this is an extreme conclusion and not the court's first option.

However, it is important to take action rather than allowing non-contact to become the status quo.

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13. Can I stop my former spouse or partner seeing my child?

It is usually considered to be in the child's best interests to spend time with both parents. This is not changed by factors such as your own feelings about your former spouse or partner.

If there is a genuine reason why it is not in the child's interests to have contact, for example, if the child is at risk or a victim of abuse or violent behaviour, you can apply to the court for an order to prevent contact. Even then the court will not usually expect there to be no relationship between a child and parent, but will look at whether safeguards can be put in place to make it safe for the child.

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14. Can I have a say in how my children are brought up even if they live with my former spouse or partner?

If you have parental responsibility (for example, if you were married), you continue to have a right to a say in how your children are brought up.

If you cannot reach agreement, you can apply to the court for a specific issue order, for example, on where the child should be educated. The court's decision will be based on the child's best interests.

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15. Can I stop my children who live with my former spouse or partner being taken to live abroad?

As you retain parental responsibility for your children, your permission or a court order is legally required to take the children to live abroad. Your ex is, however, generally allowed to take the children abroad for holidays of up to 28 days. Your ex should still seek your permission unless there is a court order that the child lives with them.

If you are concerned that there are plans to take your children to live abroad regardless, you can apply for a prohibited steps order to stop your ex taking your children abroad. You should note, however, that your ex can apply for a court order allowing the children to be relocated abroad if it is in their best interests.

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16. How can I stop my ex's new partner replacing me in my child's eyes?

Maintaining regular contact with your child will stop the new partner replacing you. However, it will not prevent your child forming an emotional attachment to the new partner. Focus on your own relationship with the child, rather than competing with the new partner.

Sometimes issues can arise over the child's surname. For example, when the child continues to live with the mother, the mother may want to change the child's surname to that of her new partner.

You can object to this and can take court action if the mother insists. As always, the court's decision will be based on the child's best interests, but usually the court will not allow the change of name.

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17. What can I do if my former spouse doesn't want to have any involvement with the children?

You cannot force your former spouse to be involved with the children (apart from ensuring that any child maintenance is paid). Indeed, if your former spouse does not want to be involved, it is probably in the children's best interests that he or she is not.

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18. How are maintenance payments for my children worked out when we separate or divorce?

Families are expected to make their own private arrangements for child support. However, if this is difficult the Child Maintenance Service can usually help:

  • They can work out what payment is due but not get involved in collection or enforcement. This can be a good option for parents who cannot agree how much payment should be.
  • They can get involved in enforcing the payments. There are fees to use this service.

The Child Maintenance Service has a formula for calculating the amount of maintenance that the non-resident parent must pay to support children. A 'basic' rate applies for a gross weekly income between £200 and £800:

  • One child 12%.
  • Two children 16%.
  • Three or more children 19%.

A higher, 'basic plus' rate applies to incomes from £800 to £3,000. Reduced rates apply if the non-resident parent has a low income or is on benefits.

The amount can be reduced if the non-resident parent has other children to support or extra costs. Other circumstances may also affect the maintenance due, for example, if a child spends more than one night a week with the non-resident parent.

You can use the Child Maintenance Options calculator to get an idea of how much statutory child maintenance would be in your particular circumstances.

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19. What can I do if my former partner doesn't pay the agreed child maintenance?

If there is already a court order in place requiring your former partner to pay child maintenance, but he or she fails to do so, you can go back to the court to ask them to enforce payment. For example, the court might issue an attachment of earnings order, so that your former partner's employer automatically pays you. You should take urgent legal advice if your former partner stops paying maintenance.

If you are using the Child Maintenance Service to handle payments (or the Child Support Agency for some cases set up before December 2013), you should contact them.

Take advice before agreeing to any changes to your child maintenance agreement.

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20. How can I protect my child's financial interests when I divorce or separate?

From the start, ensure that financial arrangements provide adequate maintenance for your child. If the child will be living with you, ensure that the non-resident parent's maintenance contribution is at least as much as the level required by the Child Maintenance Service's formula.

Take advice if there may be grounds for requiring higher payments, for example, to contribute towards private education or if your spouse has a very high income.

Think about the risks to this income. For example, if your former spouse runs into financial difficulties or remarries and has new children to support, the required maintenance payment could be reduced. If your former spouse dies, maintenance payments will stop altogether, of course.

Consider asking your former spouse to take out suitable insurance policies, and making provision in his or her will for the child's benefit. If your former spouse dies leaving a will that fails to provide adequately for the child, take immediate legal advice. It may be possible to challenge the will so that funds are provided for the child's benefit.

Throughout, try to respect your former spouse's right to continue to be involved with the child and encourage their relationship, regardless of your own personal feelings. Your former spouse is more likely to be willing to provide financial support if he or she remains close to the child and is taking an interest in how the money is spent.

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21. How can we minimise the upset our separation or divorce proceedings cause our children?

The more you can agree among yourselves, the better. Ideally, agree all arrangements for the children without a court order. This avoids the children having to become involved in court proceedings. Children who are asked to tell the court what they want can feel that they are being asked to choose between their parents.

Try as best you can to avoid involving children in your own arguments. No matter how badly you may feel your spouse has behaved towards you, it may well be in the child's best interests to continue to have a civilised relationship with them.

You may find it helpful to get in touch with a suitable support group, both for your own sake and for advice on how to protect your children's emotional wellbeing. You can find a range of helpful information online for parents and children, for example from the Children and Family Court Advisory and Support Service.

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