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The divorce process itself is relatively administrative in nature. The first stage in the divorce process is the divorce petition and is started by the petitioner, one of the parties in the relationship, who presents a divorce petition to the court.
In England and Wales, you can only start divorce proceedings if you have been married for one year or more and by proving that there has been an ‘irretrievable breakdown of the marriage. This is the only ground for divorce and is evidenced by one of five facts – I explain more about the grounds for divorce in my earlier blog here.
The divorce petition sets out details such as the names of the parties, addresses, details of the marriage and the fact being relied upon. At one point, and towards the end of the divorce petition the petitioner (the person presenting the divorce to the court) is asked ‘Do you want to apply for a financial order’? In response to this question, the petitioner can tick either: –
Yes, I want to apply for a financial order for:
– My children
A question we, as family lawyers often get asked is, ‘should I tick this/ these box(es)’? A frequent misconception is that by ticking ‘yes’ it will initiate financial proceedings through the court or commit the parties to a course of action that they do not want to take. But this is not the case. By ticking the ‘yes’ option (either for yourself or yourself and your children depending on the circumstances) you are simply leaving your options open to submit a consent order (the document which details any financial agreement which is reached between the parties) to the court at a future point in time. Often, it is best practise to tick ‘yes’.
If the petitioner instead ticks ‘no’, it does not prevent them from applying for a financial order in the future. However, this is only the case if the petitioner has not re-married prior to a financial agreement with their former spouse being reached. In that situation the only claim the petitioner would have is against their former spouse’s pension.
If you are in doubt as to how to complete the divorce petition you should speak to a family lawyer who will be able to assist you.
Our team of specialist family lawyers understand that divorce is a highly emotional time and that how finances are dealt with is often a key concern. Taking specialist advice early on is usually the best course of action as your legal advisor can help you to understand all of the issues that may impact on your case and their importance to you, so that your divorce can be approached in the most appropriate, sensitive and cost-effective way.
Rachel Nicholl is a Senior Associate Solicitor and Collaborative Lawyer in our Horsham team.
If you would like any further information on financial issue and divorce, then please do not hesitate to contact a member of the team for a confidential discussion about your personal circumstances.
We are committed to advising you of all the options available to you, and (unlike other family lawyers) will support you with solutions that avoid the traditional court process.Get in touch