What you can do

Dissolution and divorce

Sadly, sometimes things go wrong and couples decide to end their relationships. For civil partners to do this they need to apply for a dissolution. Married couples need to apply for a divorce. In the eyes of the law they are the same, and the process works in the same way.

Overview of the process

To apply for a dissolution or divorce, the couple must have been married or in a civil partnership for at least a year. The partner (husband/wife or civil partner) wanting to dissolve the civil partnership is called the applicant. The grounds for a divorce or dissolution is that the relationship has irretrievably broken down.

The applicant must clearly explain the basis of their application and the reasons (called facts) that can be given are:

  • Adultery – this reason is only available for divorce, and specifically refers to ‘sexual intercourse with someone of the opposite sex outside marriage’
  • Unreasonable behaviour – can include having a sexual relationship with someone else, regardless of their gender
  • Two years separation, with consent from the respondent
  • Five years separation
  • Four years desertion

If the judge accepts the application, they may grant a Conditional Order and then six weeks after grant the Final Order. The Final Order officially ends a marriage or civil partnership.

Do you need legal advice?

Getting a divorce, dissolution or bringing the relationship to an end by nullity, a separation order, or a declaration of presumed death, will not always require legal advice.

Courts now expect parties to try to resolve any dispute before going to court. This may require the help of a Family Mediator – a trained professional who can help parties reach an agreement about the distribution of assets and the future care of children. From April 2014, it is compulsory for couples to have at least attempted mediation. This means attending a Mediation Information and Assessment Meeting (MIAM) with an authorised family mediator. You can find more information about mediation on the website of the Family Mediation Council. In most cases, mediation is far cheaper than going to court, and some couples will be entitled to legal aid to cover any costs.

If a resolution cannot be achieved, and the application is opposed, it is essential to seek legal advice. Contact Stonewall for help to find a family mediator or legal adviser.

What are the implications of divorce or dissolution for children?

On the granting of a divorce or dissolution, each partner’s status in relation to the child remains the same. Therefore if the child was jointly adopted by the couple they will both remain legal parents.

Fostering

Foster parents do not have parental responsibility for children in their care – i.e. they do not have the usual legal rights and duties of a parent. As a result, upon a divorce or dissolution, foster children are not considered to be dependent children of the family, and the situation may need to be reassessed by the foster agency.

Surrogacy

Surrogacy arrangements for same-sex couples are not illegal in the UK, but they are closely regulated. Once a parental order has been made, both partners will have parental responsibility. A divorce or dissolution has no effect on parental responsibility, although the court has the power to terminate parental responsibility on the application by one of the parties.

Step-Parenting

Upon divorce or dissolution, a step-parent who has acquired parental responsibility will not lose it. Their parental responsibility can, however, be brought to an end by a court order.

Donor Insemination

On divorce or dissolution, a husband/wife or civil partner who is treated as a legal parent will be resposible for maintaining the child.

How to apply for a court order

If a former husband/wife or civil partner is unable to amicably agree on the care arrangements for their child, either partner can apply to the court for an order under Section 8 of the Children Act 1989.

The following people can apply without having to first obtain permission of the court:

  • Parents (including unmarried fathers)
  • Husband/wife or civil partner of the legal parent
  • Guardians
  • Those who already have a residence / child arrangement order
  • People who have a sufficiently close relationship with a child to have a say on where the child should live, but not a right to have a say in the details of how a parent should raise a child

Anyone else who does not fall into the above categories must obtain permission from the court.

A local authority foster carer must have the consent of the local authority to apply for a Section 8 order, unless they are related to the child or the child has been living with them for at least three years preceding the application.

The following orders can be sought:

  • Child arrangement order (previously called custody or residence order) – this is an order setting out who they child lives with
  • Contact order – this is an order requiring the person with whom a child lives to allow the child to visit, stay, or have indirect contact with the person named in the order
  • Prohibited steps order – this is used to prohibit another party from taking a specified action in relation to a child, such as taking the child overseas
  • Specific issue order – this is used to resolve a specific issue, such as a child’s religious upbringing

What are the financial implications of divorce or dissolution?

On the granting of a divorce or dissolution for a same-sex couple, the division of income and capital will be resolved by applying the same criteria as with heterosexual couples.

The court can order one partner to transfer property to the other. It can also order the sale of a property, and division of its proceeds. The court can also order one partner to pay the other a lump sum and/or pay them maintenance. It can also vary trusts entered into, in contemplation of, or following, the marriage or civil partnership. Orders can also be made in relation to the spouse or partners’ pensions.

In deciding which orders to make, the first consideration for the court will be for the welfare of any child under the age of 18. The following matters will also be considered by the court:

  • Income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future. This includes whether it could be reasonably expected for either husband/wife or civil partner to take steps which would increase their earnings, for example through employment
  • Financial needs, obligations and responsibilities which each of them has or is likely to have in the foreseeable future
  • Standard of living enjoyed by the family before the breakdown of the marriage or partnership
  • Age of each party and duration of the marriage or partnership, including any pre-marriage or partnership cohabitation
  • Any physical or mental disability of either of the parties
  • Contributions which each of them has made or is likely to make to the welfare of the family, including any contribution by looking after the home, or caring for the family
  • Conduct of each of the parties, whether it occurred during the relationship or after separation
  • Value to each of any benefit which either party would lose entitlement to – for example, a pension

Courts aim to achieve a ‘clean’ break for both parties. However, clean breaks are rare. The court will often also order one of the parties to pay maintenance to the other.

What is the effect of the divorce or dissolution on pensions?

Courts can also take into account the value of pensions held by either party when redistributing their income and assets. Options available to the court are:

  • Offsetting – pension assets of the parties are either wholly or partly compensated through the value of other assets or a lump sum payment
  • Attachment/Earmarking Orders – schemes pay a portion of one partner’s pension to the other on their retirement
  • Pension Sharing – a percentage of one partner’s pension is transferred to a new pension for the benefit of the former husband/wife or civil partner

Prenuptial agreements

You may wish to arrange a pre-marriage agreement, also known as a ‘prenuptial agreement’, before your marriage or civil partnership. This will agree how your assets should be divided in the case of separation, divorce or dissolution. These agreements are not currently legally binding but courts can take account of them. We suggest you take legal advice.

For further information please contact Stonewall's Information Service on 08000 502020, tweet to @StonewallUKInfo or email info@stonewall.org.uk