Frequently Asked Questions

Q? How will I know what is happening in my case?

We will update you as soon as possible on any development in your case. If we need to get hold of you urgently, then we will contact you by telephone. We aim to return telephone calls on the same day and reply to letters and emails within 24 hours. On occasions that is not possible due to other work commitments. In emergencies we are contactable via mobile phone when away from the office.

Q? Is it OK if I email you?

At Milligan Law we encourage the use of email as being the quickest and more efficient method of communication. We do however make these points:

  • Email is not secure and using this involves a risk to security.

  • Increasingly we are seeing separated couples access their partner’s email account. Please make sure that you change any password to promote the security of all communications between us.

  • Most law firms charge for each email received or sent as one tenth of the hourly rate, as with any correspondence. We consider this to be unfair. An email simply saying “thank you” does not progress your case and cannot justify being charged for. We take a pragmatic view of such exchanges of emails and charge accordingly. To save you costs we recommend that, except where the situation is urgent, you send one weekly update email covering any issues that have arisen, or that you keep a diary of events and update us from time to time.

Q? I do not agree with the allegations within the divorce petition and what has been said about my behaviour.

This is often the case. The majority of divorce petitions rely on the “unreasonable behaviour” ground for divorce set out in the Matrimonial Causes Act 1973. This means that the Petitioner has to cite a number of allegations of unreasonable conduct on behalf of the other spouse simply to get the petition through the courts. Often the allegations of behaviour set out in petitions can be inaccurate or exaggerated. Your options are as follows:

  • Defend the petition. Defended petitions are rare. The reason is that the divorce is a separate case to the financial and children cases. The conduct or allegations within the petition generally have no bearing whatsoever upon the financial settlement. The alleged conduct has to be very extreme to have any bearing on the finances.

We will fight the case forcefully for you if we are instructed to do so. We will cross petition against your spouse if necessary. We will advise you on the commerciality of adopting such a course of action. Defending or cross petitioning a divorce petition can easily incur costs of £3,000 to £5,000. Careful consideration has to be given prior to embarking upon such litigation.

  • Ask for the petition to be amended so it reflects the true position. The Petitioner might ask that you pay their costs for the additional work.

  • Write to the Petitioner’s solicitors advising that the allegations are not accepted, but as the marriage is at an end, on a commercial basis, you will allow the petition to proceed. We will also at this stage negotiate on who pays the divorce costs.

Q? What if I find documents relating to my spouses finances, or letters from their solicitor?

There is a duty between the parties to provide full and frank disclosure.

There is an important distinction between obtaining the documents/information and use of that information by the courts. If the information contained within documents is relevant to the proceedings because it assists in the overreaching duty of full and frank disclosure, it will be admitted in evidence by the courts. However, illegally obtaining information may be penalised by the family courts in costs orders. The spouse obtaining that information may be liable to criminal prosecution (e.g. Under the Computer Misuse Act 1991) and/or civil proceedings for damages. Documents left lying around can be copied but originals cannot be taken and, if they are to be copied, they and all copies must be returned to the spouse/their solicitor as soon as practicable and in any event within 2 days.

Some documents are privileged and cannot be used or copied at all. These normally would be letters or documents passing between your spouse and his/her solicitor. If in any doubt you should raise this with us.

Q? How long will my case take?

A divorce takes between 4 and 6 months from the issue of a divorce petition to the pronouncement of Decree Absolute. It should be remembered that the divorce is a separate case to any financial or Children Act applications that may be made. There is no such thing as a “quickie divorce” as you sometimes hear in the media; the same rules and processes apply to everyone.

The financial case can take much longer. If one party takes an unreasonable position, or if you just cannot agree, then it will be necessary to issue an application for financial relief with the courts. The full process can take between 6 and 18 months, or even longer, depending on the issues involved. Just because proceedings have been issued does not mean that your case will end up in trial. We continue to negotiate and to reach a settlement if we can which is in your best interests.

We ask our clients to complete a Form E, setting out full financial disclosure at an early stage and ask your spouse/spouse’s solicitor to do the same, so that the issues can be identified as soon as possible. Prior to every significant court hearing, we will prepare a position statement to hand to the judge, setting out your case and why the court should make the order you are seeking. This is very effective in getting across your point of view and assists in negotiations.

Children Act cases vary enormously in their length, depending upon what issues are at stake. An application for contact or residence can take between 9 and 18 months from start to finish. This unfortunately is down to the court system. In many cases, the court will want there to be trial periods of contact, with reviews every three months or so. These trial periods may be successful for a while and then breakdown. When a breakdown occurs or new issues arise, delays will be involved. Often it can feel as if you have to start all over again. If a Cafcass report is required, these can take up to 6 months or more to complete.

Q? My parent provided the deposit on our first house. As we are now divorcing my parents want their deposit back. They do not want my spouse to have any of it.

This situation is not uncommon. Unless there is a formal loan agreement between you and your parents, the court’s attitude is quite cynical. The deposit provided was at the time more than likely a gift to both of you. If a gift has been made, then it cannot at a later stage be transferred into a loan. It is unlikely that your parents will be able to recover the deposit.

Q? Why is my case dragging on?

At Milligan Law we try to always abide by court orders and time limits. Often others do not do the same.

If a party fails to provide information or comply with a court order, then an enforcement application will have to be made to the court. It may take several weeks for the court to issue and list your enforcement application.

In cases concerning children where a report from a Cafcass officer is requested, the preparation and the receipt of that report can take 6 months or more in some courts.

On occasions, the other party may be eligible for public funding (commonly known as legal aid). This can cause delays at the outset of a matter and when proceedings are issued. Obtaining legal aid can take several weeks and the court will generally adjourn a case until such time as the legal aid is in place. This can be extremely frustrating and cause lengthy delays when no progress at all can be achieved.

We always do our best to progress matters as quickly as possible but on occasions there are issues outside of our control. We will always inform you when any such issues arise, we will do all that we can to ensure a resolution of your case but at all times keep you informed about developments.

Q? Why do you not use a barrister at every court hearing?

All of our solicitors are trained and accomplished advocates. Your solicitor knows you and your case better than anyone, it does not make sense to put it in the hands of someone else. Instructing a barrister can lead to a duplication of work and an increase in costs as there will be 2 people at court. It might mean that on occasions you are left alone whilst your solicitor conducts negotiations with the other side but it will save you many hundreds of pounds.

On occasions, for example final hearings (trials), it may be of benefit to instruct a barrister and have a specialist advocate present your case to the court. From time to time it may be advantageous to obtain the opinion of a barrister in a particular area of specialism. We have excellent relationships with the best barristers across the country.

Q? If I win my case, will I get costs?

For the divorce proceedings, the general rule is that if you issue a “behaviour petition”, either adultery or unreasonable behaviour, then you will be awarded your costs. These will normally be agreed at between £1,200 and £1,750 inclusive of VAT and court fees. If no agreement can be made, the court will assess the amount of costs that you will be entitled to. On a “no fault petition” based on 2 or 5 years separation, the general rule is that there is no order for cost.

In relation to the financial proceedings, the general rule is that no matter what the outcome of the case, each party should pay their own costs. If one party acts unreasonably then the court can make a costs order against them. Acting unreasonably may include failing to provide full and frank disclosure, dissipating assets, failing to comply with the court’s timetable. Making an offer which transpires to be the lower than the court awards is generally not unreasonable.

In Children Act applications for contact and residence the general rule is that there should be no order for costs. Again, if one party acts unreasonably, then the court has power to make an order for costs.

In all cases, the judge has a discretion as to whether to penalise a party in costs at any stage of the process.

Q? My spouse refuses to comply with the courts order, what can I do?

Obtaining the court order can sometimes be only stage one of the process. There are many occasions where a courts order will have to be enforced, even if the order was originally made by consent. This is extremely frustrating, especially when it has taken so much time and money to get the order in the first place.

Enforcement of the order can be time consuming and expensive. If any order is for the sale of property and one party will not co-operate or sign the conveyancing papers, then you will have to go back to the court, often on several occasions. If a party does not pay maintenance then the order has to be enforced. Attachment of earnings orders are one method.

Generally speaking, a party who does not comply with a court order will be ordered to pay the other party’s costs of any enforcement proceedings. There is however a quirk within our legal system at this point. Many methods of enforcement, for example an attachment of earnings order, a third party debt order or an application to have the court bailiff levy against goods, have limits on the legal costs that can be recovered, known as fixed costs. These costs are very low, a matter of a few pounds in certain cases and the court fee. Commercial decisions have to be made before embarking on enforcement action.

Contact (formerly “access”) orders can be very difficult and expensive to enforce. Simply getting an order for contact will not guarantee that you see your children. The court does have powers to enforce contact orders, but it is more often than not a very slow and expensive procedure. There are certain cases where the courts will not enforce their orders even when there has been a clear breach of it, for example, a mother who refuses to comply with a contact order. The courts are unlikely to imprison her or fine her, as this will impact upon the best interests of the children, which is the court’s primary concern.