We hope that you find our list of Frequently Asked Questions helpful. If you have a question which isn't listed here, please don't hesitate to contact us. Click here for our contact details.
Q. What do I need for my first appointment with a solicitor?
A. To get the most from your first appointment with your solicitor, please bring the following with you. Any court papers you have received. Any relevant letters you have received. Names and addresses of anybody in your case. Proof of receipt of benefits and National Insurance number if applicable in securing free legal advice under one of the relevant schemes. Photo I.D and a recent utility bill at your home address.
Q. Will I have to pay?
A. We are dedicated to providing the highest standard of service whether clients are publicly or privately funded. You do not have to pay for representation to appeal to a Mental Health Review Tribunal against detention in hospital. The Legal Services Commission provides Controlled Representation to cover this. You may be entitled to Public Funding for other legal problems depending on your means. If you receive Income Support or income-based Jobseekers' Allowance, or if you are on a very low income, you will not have to pay anything towards your legal fees in most cases. If you are eligible for legal aid for a case where money or property is recovered or retained in proceedings some or all of the legal costs will have to be repaid to the Legal Services Commission out of the money or property preserved. In this way public funding can act as a loan. This is known as the statutory charge but it does not apply in all cases. Your means may be such that you are eligible for legal aid but may have to pay a contribution from savings, capital or income. We will advise you about this. For privately funded cases we will estimate the cost of your case at the outset and keep you regularly informed. Our charges are clear cut and competitive providing affordable expertise with close proximity of the city.
Q. I got married two months ago and have realised I made a dreadful mistake. Can I start divorce proceedings immediately?
A. No, you have to be married for at least 12 months before being allowed to start proceedings for divorce.
Q. Will I need to go to Court for a Divorce?
A. No, not for the divorce itself. Provided the divorce is undefended (they almost always are) and the costs have been agreed it is all carried out on paper through the post.
Q. We get on well and we have agreed everything, can you act for both of us?
A. Our professional rules effectively prevent this and you will each need a lawyer to look over the situation from your point of view.
Q. I am reluctant to start divorce proceedings because we still get on very well. I am frightened if my wife goes to see a solicitor, the solicitor will stir up trouble and we will end up fighting. What can we do to prevent this?
A. Try and both go to solicitors who follow a similar conciliatory procedure. Also try and agree as much as possible between yourselves or consider going to Mediation. If you have already worked out an agreement, the respective solicitors can help you to obtain a divorce and turn the agreement into a consent order for “ancillary relief” (i.e. a financial order)
Q. My husband/wife will never agree, he/she will just throw the divorce papers in the bin.
A. Don’t worry. It may take longer to get a divorce but we will get there in the end. If the petition is based on unreasonable behaviour we can arrange for the Court Bailiff or for a Private Enquiry Agent to serve the papers on him/her personally. Provided we can prove the papers have been served and provided no “Answer” (i.e. a Defence) has been filed with the Court, we can go ahead with the Petition.
Q. What exactly does “adultery” mean?
A. Adultery means sexual intercourse with someone of the opposite sex. Any other type of sexual behaviour can be referred to in an unreasonable behaviour petition but it would not be adultery.
Q. My wife has disappeared. I haven’t seen her for 7 years and I don’t know her address. Can I divorce her anyway?
A. Yes, but only if the Court is satisfied you have made every effort to trace your wife. We can help you try and trace her through a Tracing Agency.
Q. I have just received a divorce petition. It’s a pack of lies. I want to defend, am I wasting my time?
A. This is a difficult one but in practice defended divorces are almost unheard of. To try and explain briefly, defended divorces are highly expensive because they involve at least one preliminary hearing at court plus a full contested hearing where you and any witnesses would have to give evidence. You should allow £2,500 at least depending on the number of allegations and the time estimate for the main hearing. In addition you are likely to have to pay barristers fees which make it more expensive. If you win, all that you will get is the privilege of still being married to someone who definitely does not want to be married to you. However, it is far more likely that you would lose. There are exceptions to this such as religious reasons. Divorce Petitions based on unreasonable behaviour usually contain a number of different allegations. There are likely to be several sides to the story but most couples (including the happily married!) are likely to do things which their partner will consider “unreasonable” at some point during the marriage. You may persuade the Judge that some of the allegations are wrong but you are unlikely to be able to defend every single allegation made. If your spouse succeeds on just one of them, chances are he/she will get the divorce. It is highly unusual for financial issues and child care arrangements to be affected by the grounds for the divorce.
Q. OK, so if I don’t defend what can I do? I still want to make sure my side is known to the Court.
A. We can say in the “Acknowledgment of Service” that while you are not defending, you do not accept the allegations made. We can also file a statement with the Court setting out your side of the story. If any of the allegations re-appear in other parts of the proceedings, we can deal with them in detail when relevant. For example, financial conduct may be relevant to the financial proceedings and may also have appeared in the divorce petition. The cost effective place to deal with this is in the context of the financial proceedings, not the divorce.
Q. I need a divorce but I am not eligible for legal aid and I cannot afford to pay a solicitor. Can I deal with the divorce myself?
A. Yes, certainly. If your divorce is based on either adultery or separation and if your husband or wife is agreeable to a divorce, there is no reason why you should not get in touch direct with your local court and deal with the divorce on a “DIY” basis. You will still have to pay court fees (£340) but the cost of obtaining the divorce will be considerably reduced. If your divorce needs to be based on unreasonable behaviour, you may want a solicitor’s advice about what to include in the petition. You can then deal with the rest of the divorce yourself. However, if you or your spouse own a house or other assets or if either of you belongs to a pension scheme, you really need a lawyer to draw up the financial order. You may well be able to work out a financial agreement between yourselves but preparation of an “Ancillary Relief” order is highly specialised work and we do not recommend that you attempt to do this yourself.
Q. What is a Separation Deed?
A. A Separation Deed is a formal document which sets out the terms of agreement between a couple who separate. It is a contract which in the absence of divorce proceedings and an “Ancillary Relief Order” is enforceable in the same way as any other contract. However, it does not have the same validity as would an ancillary relief order made by the divorce Court. Separation Deeds are very useful where a couple decide to separate for a period of two years and obtain a divorce at the end of that period but where they wish to deal with financial matters from the outset. Provided the Deed has been entered into voluntarily by each party; there has been full and frank disclosure of financial assets on both sides; and the parties have each had legal advice, it is highly likely that when the divorce is obtained the terms of the Deed can be confirmed in an ancillary relief order. The divorce Judge does have discretion in these matters. Consequently, if a Deed has been entered into in unfair circumstances or if there is a significant change in circumstances which makes the original agreement unfair, there is a risk one of the parties could apply for the Judge to look at the situation afresh. Separation Deeds are not suitable if the parties cannot agree. You cannot force someone to sign one and if you are not in agreement, you would be better off working out on what grounds to issue divorce proceedings so that an application may be made to the Court.
Q. What is Ancillary Relief?
A. By “Ancillary Relief” we mean the financial and property proceedings ancillary to divorce. Most commonly, an agreement is negotiated and incorporated into a consent order. Assuming you are able to reach an agreement, we will draw up the draft Ancillary Relief order and send it to the other party’s solicitors for approval. If the order provides for a transfer of property it will also be necessary to obtain the approval of the Building Society. If there is a pension sharing order the terms will need to be agreed with the pension providers. When everyone is happy with the wording, the order is sent to the Court through the post along with a brief statement of each of the parties’ financial circumstances and a fee of £50.00. In due course the order will be placed before the District Judge for approval of the Court. The Judge may raise a query which has to be dealt with and the order re-submitted. Occasionally, (particularly if one of the parties is not legally represented and the order does not on the face of it appear entirely fair) the Judge may ask the parties to attend a brief hearing and may query the terms agreed.
Q. How does the Court decide who gets what?
A. There is no hard and fast rule. The Court will apply a number of factors which include the age, income and earning capacity, responsibilities of the parties, their respective needs, the length of the marriage and the parties’ resources including their pensions. The interests of minor children always come first and providing accommodation for them will be a priority.
Miles and Partners is part of the Community Legal Service.
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