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We have answered the 10 most frequent queries about divorce in the UK in regards to divorce between Brazilian and British couples. This process can be difficult and costly for both parties and become traumatic if children are involved, especially if parties decide to live in different countries. For this reason, we have some answers below:
How to divorce in the UK?
The divorce process in the UK has now moved online, and all applications are made using the Government portal. At the current time, parties have to pick one of 5 grounds for divorce, either:
A 5-year separation;
A 2-year desertion period;
A 2-year separation period providing both parties agree;
That the other party has committed adultery; or
That the other party’s behaviour is unreasonable.
The new change to the divorce process has been scheduled to come into force on 6th April 2022 when all applications will be made as “no-fault” divorces. There will be no defense to divorce, and the applications can be made by one or both parties.
Under the current law, and when the new law takes effect, the divorce process is a 2-stage process. The Court assesses whether there are grounds for divorce and issues a Decree Nisi or Conditional Order, which is the first stage. The second stage is the Decree Absolute or Final Order.
Divorce proceedings end the marriage, but do not automatically end the couple’s financial claims against each other, which are dealt with separately. One of the risks with the new online divorce system is that a lot of people are managing their divorces online themselves, but they do not realise that their financial claims are not automatically dealt with.
In these circumstances, people can become divorced, but still at risk of their former spouse making a financial claim against them in the future.
I married in Brazil, can I get divorced in the UK?
The UK Court recognises foreign marriages as long as they were valid in the country where they took place, and on that basis, it is possible to apply for a divorce in the UK. There are some qualifying requirements in terms of domicile and habitual residence, depending on where both parties are living, and if there is any doubt whether the UK Court has jurisdiction, it is worth taking initial legal advice.
Will the UK accept my Brazilian marital regime?
There is no definitive answer to this, unfortunately. A marital regime of a “foreign” jurisdiction is likely to be approached by the UK Court similarly to a pre-nuptial agreement and treated as one of the many factors for consideration by the Court. It will not be automatically binding when going through a divorce in the UK.
In the way that the Court would treat a pre-nuptial agreement, a Judge is likely to consider whether both parties had independent legal advice, whether they were fully aware of each other’s financial position when they entered into the marital regime to be able to make an informed decision, and that they had time in which to make that choice, so they weren’t forced or coerced into it. Above all, a Judge in the UK Court will be checking that the outcome it produces is fair and meets the reasonable needs of the parties and any children involved.
How long does a divorce take?
Under the current legislation, the typical time for divorce proceedings is between 5-6 months. It is possible to get divorced in around 4 months if all parties act very quickly, but likewise, it can also take a lot longer than 6 months if there are difficulties.
Because there is a financial impact of divorce in terms of losing a spouse’s rights to pension funds and insurance policies, most lawyers will recommend that divorce proceedings are not concluded until a financial settlement has been reached (or ordered by the Court). This can sometimes mean a delay of between 6-12 months, or even longer.
The new “no-fault” divorce process has 2 built-in time periods which are unlikely to be able to be shortened and add up to 26 weeks in total, i.e. around 6 months. It is therefore anticipated that the length of time to get divorced under the old and new systems is not likely to change dramatically.
How is child maintenance determined?
The Child Maintenance Service (previously the Child Support Agency) deals with child maintenance calculations and payments in the majority of cases. The calculation is statutory with no discretion. Parties are encouraged to reach an agreement regarding child arrangements payments, but the Child Maintenance Service can carry out calculations, collection of payments, and enforcement if required.
There are limited circumstances in which parties can make an application to the Family Court for child maintenance. One of these will be where the absent parent is living abroad, and also where the absent parent’s income is over £3,000.00 gross per week, in which case “top-up” maintenance can be applied for.
There are further financial claims that can be made to the Court on behalf of children to meet other needs, such as housing and schooling.
How is the house dealt with in a divorce?
There is a very wide discretion as to how all assets are dealt with in divorce, and the family home is no exception. The former family home is generally accepted as being a matrimonial asset, but there are some cases where it might be argued that it is not, i.e. where it belonged to one party prior to the marriage, and it has been a particularly short marriage. However, the parties’ needs often outweigh “contributions” arguments. Because the various factors taken into account by the Court are numerous, and the particular circumstances of each case are very different, there are no set rules about how the house will be dealt with.
In terms of the options available to the Court, these will be to transfer the house to one party or the other; order it to be sold and direct how the net proceeds are to be divided; or direct that one party be able to occupy the property for a period of time (i.e. to allow children to finish their education), and then the property be sold and proceeds divided.
How are assets in Brazil dealt with in a UK divorce?
The UK Court cannot make orders binding on a foreign Court. Parties have a duty to disclose their full financial information when dealing with a financial settlement, and this includes all assets held worldwide. They will be expected to produce valuations and evidence of assets held.
As the Court cannot reliably order the sale of a foreign property, the preferred option where possible will be to “offset” that asset against assets held in the UK. Issues can arise, however, where foreign assets derive from inheritance or are perhaps considered “family assets” and not truly the property of the divorcing party.
What is a Decree Nisi and a Decree Absolute?
A Decree Nisi (Conditional Order) is a certificate of entitlement to a divorce. It is a statement from the Court confirming that a Judge has reviewed the divorce paperwork and confirms that the applicant is entitled to a divorce. It is not the final decree, however, and the parties remain married at this stage.
Once a Decree Nisi has been granted by the Court, the parties are able to ask the Court to make any financial arrangements they have agreed legally binding on them.
The Decree Absolute (Final Order) is the final stage of the process and is the Court Order which ends the marriage. As mentioned above, this does not automatically end the parties’ financial claims against each other.
However, the Decree Absolute means that neither party qualifies as the “spouse” of the other in terms of spouse’s pensions or life insurance policies, and also affects inheritance under a Will.
Do I need to register my UK divorce in Brazil?
It is not necessary to register a foreign divorce in the UK. However, Brazil does require foreign divorces to be registered in the country in order for them to be valid. There are many implications, such as the purchase of property or future inheritance.
How much does a UK divorce cost?
The Court fee in the UK is currently £593, although subject to increases from time to time. Those on low income can apply for an exemption from the fee, or a part remission by completing a means assessment form for the Court. Any lawyers instructed to manage divorce proceedings will charge for the work involved, usually anywhere between around £500 - £1,000 plus VAT.
Because of the online system, unless it is likely to be a very complex divorce or the applicant is anticipating difficulties, most people find it more cost-effective to manage the online divorce process themselves. The area where lawyers can add value and most people benefit from legal advice is in dealing with a financial settlement or disputes regarding the arrangements for children and property.
This informative article was written by Fernanda Ellis from Mosaico Tax and Law, and Madeleine Young, a specialist in Family Law from Hewetts Solicitors.