Family and Divorce Solicitors in Birmingham

The short answer is no, but it is a very good idea to instruct an experienced, specialist family divorce solicitor.

In the same way that a person could try and fix their own car if it failed, or cut their own hair, it is usually far preferable to instruct an expert.

Whilst the divorce process is increasingly designed to be user-friendly, it remains the case that an incorrectly completed divorce petition could be rejected or result in the loss of an automatic right to make financial claims. An application to finalise the divorce too early can result in the loss of other financial rights, such as pension entitlements.

There are routinely wider issues to resolve, such as child arrangements and finances. Divorce itself does not deal with any of these issues. Even after divorce, parties have the right to make financial claims against each other. Why run the risk of a former spouse coming after a future windfall or inheritance? Instructing a sensible solicitor from the outset is often far more cost-effective than trying to go it alone.

An alternative question to ask is, should I instruct a solicitor? If you want to ensure the best outcome for you and your family, then the answer to this question is yes and, again a specialist family solicitor. As well as being an expert, a solicitor is also a buffer between you and your spouse in what can be an emotional and difficult time.

RLK Solicitors have experienced family law solicitors able to advise upon the factors most relevant to your circumstances and how these should be taken into account. A realistic approach often saves both time and money.

Since 06 April 2022 “no fault divorce” has been possible. There is no longer the need to be separated for 2 or 5 years or to make allegations of fault against your spouse.

Divorce applications can be made jointly with your spouse, or a sole application can be made if you prefer. It is not possible for your spouse to defend the divorce proceedings and the divorce cannot be finalised sooner than 26 weeks after the divorce application has been issued by the court.

The words we use to describe the divorce process have changed, there is no longer a divorce petition, but a divorce application. There is no longer a petitioner but an applicant. The Decree Nisi has become a conditional order and the Decree Absolute is the final order.

• Issuing an application is the process by which the application is given a case number by the court and formally becomes an application.
• Service is the act of sending the divorce application to the other party.
• A respondent is the person being divorced, where the application is by one party only.

The divorce process is slightly different, depending upon whether it is a joint or a sole application.  This Q&A will deal with digital applications only.

1. Applicant 1 completes the application for divorce and uploads the Marriage Certificate to the online system.
2. Applicant 2 will receive an email asking them to review the information and provide any additional details
3. The application will then go back to applicant 1, who can review any amendments made by applicant 2 and, if the amendments are agreed, submit the application to the court.
4. 20 weeks after the court has issued the joint application both applicants can apply jointly for a conditional order.
5. Alternatively, one applicant can apply for the conditional order solely.
6. 6 weeks after the conditional order is made, both applicants can give notice to the court for the conditional order to be made final, as long as the application for a conditional order was made on joint application.
7. Alternatively, even where the application for a conditional order was joint, 6 weeks after the conditional order is made, one applicant can give notice to the court for the conditional order to be made final. Sole notice can only be given to the court, after giving 14 days’ notice to the other applicant.

As can be seen from the steps above, there is scope for a joint application to be progressed by one applicant only. It is not therefore possible for one party to change their mind, after the issue of the application and stop the divorce from continuing.

1. The applicant completes the application for divorce and uploads the Marriage Certificate. The court will issue the application. The application is served on (sent to) the spouse, the respondent to the application, either by the applicant or the court.
2. Where the applicant is serving the application, they must do so before midnight on the calendar day 28 days after the date of issue of the application.
3. Where the court is serving the application, an email link will be sent to the respondent. The link will allow the respondent to view the application and acknowledge service. The respondent will also be sent a notice by post.
4. If no email address has been provided for the respondent, the court will send the application to the respondent in the post.
5. After the application has been acknowledged and 20 weeks has passed since the issue of the divorce application, the applicant can apply for a conditional order.
6. 6 weeks after the conditional order, the applicant can apply for the final order.

The purpose of the 20-week delay between issue of the application and being able to apply for the conditional order is to give the parties time to reflect and to resolve child arrangements and financial matters.

If you and your former partner can agree where your child/ren will live and who they will spend time with there is no need to make an application to the court. 

In fact, because of something called the “no order” principle, there should be some sort of ongoing dispute (that you cannot resolve) for the court to get involved. 

An application for the court to decide child arrangements, (previously known as residence and contact or access), can take a long time and can be a very fraught process. 

Even if you cannot agree initially, other options such as mediation should be considered before making an application to court. 

There are also resources online to help parents agree child arrangements. The website of the Citizens Advice Bureau, the gov.uk website and Cafcass’ website  all have helpful resources. The Cafcass website also has useful information on creating a parenting plan. 

There will, however, be circumstances in which you cannot reach agreement. If you have safeguarding concerns about the lifestyle of your child’s other parent or their ability to safely care for them, then you should speak to a suitably qualified solicitor. RLK Solicitors have experienced family law solicitors able to advise upon the factors most relevant to your circumstances and how these should be taken into account. A realistic approach often saves both time and money.

There is a legal presumption of parental involvement. This means that courts encourage a child’s relationship with both parents unless this would put the child at risk of harm. 

The court’s first consideration is the welfare of the child and The Children Act 1989 gives a checklist of factors for the court to consider as follows:-

1. The wishes and feelings of the child. This is in light of the age and understanding of the child. Generally, the older a child, the more weight will be attached to their wishes and feelings. The court is not, however, obliged to give effect to a child’s wishes and feelings and can give consideration as to whether wishes and feelings are genuinely those of the child. 
2. The child’s physical, emotional and educational needs. A parent should be able to provide for a child’s physical needs e.g., a parent seeking overnight contact will need to provide somewhere for a child to sleep. Children generally have an emotional need to have a relationship with both of their parents and also their siblings. 
3. The likely effect on a child of a change in circumstances. This is often a balancing exercise. A court would be very reluctant to change where a child lives for example, simply because one parents wants that, but would usually be very willing to establish contact with a non-resident parent, even where that change may be unsettling for a time. 
4. The child’s age, sex, background and relevant characteristics. This can include arguments around cultural and religious backgrounds.
5. Any harm the child has suffered or is at risk of suffering. There is a wide definition of harm, which also includes seeing or hearing the ill treatment of another e.g., a child hearing one parent harming the other parent. Allegations of harm will be thoroughly investigated, and any risks assessed. 
6. The capability of the child’s parents (or other relevant people) in meeting the child’s needs. This can include the capability of new partners also. A parent needs to be able to meet a child’s needs whilst in their care. 
7. The powers available to the court. This section tends to be more relevant to care proceedings. 

The court must also be satisfied that making an order for a child is better than making no order at all. 

Agreeing arrangements for children can be difficult and the prospect of the court making decisions for you is a daunting one. RLK Solicitors can assist with reaching agreements, guide you through the court process and help you achieve the best outcome for your child. 

The two main considerations for your child/ren upon separation are usually, who they will live with (formerly known as residence), and who they will spend time with (formerly known as contact or access).

Any parent who has previously lived with a child full-time could be, understandably, concerned about spending less time with them. There is a legal presumption that parental involvement in a child’s life will further a child’s welfare, unless there is evidence to suggest that the involvement of that parent would put the child at risk of suffering harm

In deciding child arrangements, the focus needs to be on what it is in the child’s best interests. Every child and situation are unique, some children will thrive in a “shared care” situation, where they spend approximately equal time with both parents. Older children may want the independence to flow between two homes when they decide. Other children may need to spend more time in one base during term time with a very different arrangement in school holidays. 

Add differing work patterns, geographical locations, starting or moving schools, differing support networks, parental communication, new siblings and partners and things can very easily become overwhelming. 

Essential considerations are:-

• What is best for your child, which may be different from what each parent wants. 
• That a separation does not diminish the love a child has for their parents, whatever you think of your former partner, your child is likely to be harmed by exposure to adult discussions and opinions. 
• Listening to your child and trying to put yourself in their shoes, but not making them responsible for making decisions or choosing a parent. 

Also think about:-

• Term time arrangements.
• Holiday arrangements. 
• Christmas time and other celebrations, whether faith based or important to you as a family.
• Birthdays. 
• Mother’s and Father’s Day. 
• Indirect contact such as telephone and video contact. 
• Handovers.

Finally, any child arrangements, whether agreed or imposed by the court need a certain amount of flexibility. Children grow and circumstances change. What works for a 3 year old, most likely won’t work for a 13 year old. 

Although a “usual order” may mean a child living mostly with one parent, spending every other weekend and a teatime contact with the other parent, plus half of all school holidays and alternating special occasion contact, there is no one size fits all approach. 

RLK Solicitors can help support and guide you through reaching an agreement on child arrangements, or, if that is not possible, the court process. RLK Solicitors have experienced family law solicitors able to advise upon the factors most relevant to your circumstances and how these should be taken into account. A realistic approach often saves both time and money.

Dispelling the myth of an automatic 50/50 asset split in divorces, the court’s nuanced approach prioritises fairness, children’s welfare, and individual circumstances, considering a wide range of factors from income to contributions and needs.

It is a common misconception that all assets are split 50/50 after a divorce. Although a 50/50 split is a common starting point and is used as a cross check by the court, there is no hard and fast 50/50 rule. 

Whilst it is absolutely possible to resolve matrimonial finances without going to court, it is sensible to bear in mind the approach and factors taken into account by the courts. Even agreements need to be turned into orders to be enforceable, and the court does not simply rubber stamp agreements. The factors below are also relevant to considering finances after the breakdown of a civil partnership. 

The court’s approach is set down in section 25 of The Matrimonial Causes Act 1973.  The aim of the court is to achieve a fair result based on the circumstances of the case, with children (under the age of 18) being the first consideration.  The court is specifically required to consider the following: 

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire. 

In plain English this means, what the parties have (whether in sole or joint names) or are likely to have in respect of assets (including property, savings, businesses, investments and pensions) and incomes, including any increase in income that it would be reasonable for a party to acquire. 

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

In plain English this means what the parties need in terms of income and capital, now and in the foreseeable future. Usually somewhere to live, sufficient income and, depending on ages, income in retirement. 

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

In plain English this means, circumstances such as, holidays, meals out, socialising and new cars. This does not mean that each party is entitled to the same standard of living after separation. Often it is not possible to replicate the marital standard of living as the assets and income that have previously supported one household now need to support two households. 

(d) the age of each party to the marriage and the duration of the marriage;

In plain English this means, the younger the parties, the less retirement incomes may be a consideration. The older the parties the more important pension considerations become. Age will also impact upon the ability to earn income. The shorter a marriage the more important individual contributions are likely to be. 

Pre-martial cohabitation may also be taken into account. 

(e) any physical or mental disability of either of the parties to the marriage;

Such disabilities may impact upon a parties’ needs.

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

Contributions to the welfare of the family are seen as equal to financial contributions. There can be no discrimination against a home maker. Where needs cannot be met without distributing assets contributed by one party only, the needs argument is likely to carry more weight than a contributions argument.

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

There are different types of conduct, including litigation conduct. There is a very high bar for taking personal conduct into account. Litigation conduct may result in orders for costs.

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit  which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

This provision is often relied upon when making arguments to share pensions.

The court is also obliged to consider whether there can be a clean break between the parties and case law requires the court to consider needs, compensation and sharing. 

Each of these factors and how they are applied is a lengthy topic and is always evolving through case law. RLK Solicitors have experienced family law solicitors able to advise upon the factors most relevant to your circumstances and how these should be taken into account. A realistic approach often saves both time and money.

Being able to agree how to divide finances with your spouse often makes for a more amicable, swift, and cost-effective solution. However, simply reaching an agreement cannot give parties a clean break, which means that either party could make an application to the court to consider finances at a later date. The only way to ensure a clean break is to turn your agreement into an order of the court.

Other points to consider are below:- 

• Is the agreement you have reached fair? Even in respect of an agreement, the court will consider fairness and will refuse to turn an unfair agreement into an order. 
• Do you know about the available assets and incomes? The first step in reaching a fair agreement is for both parties to disclose their full financial circumstances. 
• Do you know what orders the court can make and how to make other provisions enforceable?

After reaching an agreement you should be able to move forward safe in the knowledge that a line has been drawn, the terms you have agreed can be enforced if necessary, and any future assets and income you accrue will be safe from further claims. 

RLK Solicitors can assist with giving you the peace of mind to move forward knowing that your matrimonial finances have been resolved once and for all.  RLK Solicitors have experienced family law solicitors able to advise upon the factors most relevant to your circumstances and how these should be taken into account. A realistic approach often saves both time and money.

There are two very distinct phases of resolving matrimonial finances, the initial short-term (usually income related situation) and the longer-term situation. In the first instance we will consider the first scenario. 

A sensible starting point is to consider your basic outgoings such as:-

• Rent/mortgage;
• Food;
• Utility bills;
• Council tax;
• Car costs;
• Debt repayments;
• Subscriptions;
• Childcare costs; and
• Other child related costs. 

Make a list and total your basic income need. Previous bank statements may be a helpful guide to your outgoings. Remember that households with only one adult usually qualify for a reduction in council tax. 

Secondly consider your income. What is your earned income, are you entitled to any benefits and is child maintenance a consideration? There is a useful child maintenance calculator on the gov.uk website which can assist.  Will your former partner be making any ongoing contribution to outgoings and if not, is it possible to seek an order from the court for them to do so? 

RLK Solicitors can help and guide you on the possibility of whether you have the right to make a claim for interim spousal maintenance, which can include a claim for a Legal Services Order to cover legal fees, and the likelihood of success of such a claim. RLK Solicitors have experienced family law solicitors able to advise upon the factors most relevant to your circumstances and how these should be taken into account. A realistic approach often saves both time and money.