The Same-Sex Divorce Procedure: Answering Your Questions | Read Time 8 Minutes.
In the UK, almost 50% of marriages end in divorce.
Between 2018 and 2019, divorces among heterosexual couples rose by almost 19%. And the statistics are no better for same-sex couples, with numbers doubling in the same time frame.
The divorce procedure for LGBT couples can be particularly complicated when it comes to assets, property, finances and children. Knowing where to start can be overwhelming, especially when everyone is telling you a different thing.
This article is a Q&A page where LGBT Lawyers answers some of your most popular questions about the same-sex divorce procedure, including personal affairs, timelines and costs.
do I have any options other than divorce?
Before you and your spouse decide to go through with the divorce procedure, you could consider alternative ways to settle any disagreements you may have.
Separating won’t legally end your marriage, but it will give you time apart to consider if divorce is the best thing. A separation agreement documents wishes and requirements as the relationship comes to an end. This mainly focuses on assets and finances.
If you remain separated for more than 5 years, you can divorce your partner without their permission.
Bear in mind that if you do go through with the divorce procedure, the court does not have to base its decisions on your separation agreement.
Judicial separation is less common. It is usually seen when the couple has been married for less than a year, or if the couple cannot start divorce proceedings due to religious reasons.
Judicial separation still doesn’t legally end the marriage, however, it enables the court to make orders on your behalf regarding assets and finances.
Mediation is when you and your partner can reach an agreement using the help of a third person (the mediator). You can use a mediator before you and your spouse separate or choose to get divorced.
Mediation can help you make arrangements for your separation, such as deciding what to do with finances or child arrangements.
Your mediator will help you and your partner to decide what is best for you both, without taking sides. It’s important to note that mediation is not a type of marital counselling.
What are the grounds for divorce in a same-sex relationship?
There are 5 legal grounds for divorce between heterosexual spouses. These are:
- Unreasonable behaviour
- 2 years of separation (you need your spouse to consent to this)
- 5 years of separation (you do not need your spouse to consent to this)
For same-sex couples, the grounds for divorce are generally the same. However, the largest difference is that adultery is not a legal grounds for same-sex divorce. According to UK law, adultery is only an option for divorce between two heterosexual spouses.
did you know…
- In 2019, there were 822 divorces between same-sex couples
- Of this statistic, nearly 72% was same-sex female couples
- Unreasonable behaviour was the most common reason for divorce among same-sex couples
- 2019 was only the fifth year that same-sex couples were able to get divorced, as same-sex marriage was introduced in 2014 in the UK.
does the divorce procedure differ if I’m in a civil partnership?
In the UK, a civil partnership essentially grants two people the same legal rights as it would a married couple. Because of this, civil partnerships have been a hugely popular option for the LGBT community.
One of the few differences between a civil partnership and a marriage is that a civil partnership ends in dissolution, not divorce. The dissolution process is essentially the same as a divorce procedure.
Like divorce, adultery is not a legal ground for the dissolution of a civil partnership.
My partner and I have children: what will happen to them?
In a heterosexual divorce, child arrangements are agreed upon between spouses either informally or formally in court. If you don’t want to have joint responsibility for your child, the court will decide which parent gets sole responsibility (if the child is under the age of 18).
When it comes to same-sex divorce, the child arrangement process could differ slightly. Many LGBT couples use non-traditional methods of conception such as surrogacy, same-sex adoption and IVF. Because of this, same-sex parents often have different parental rights and responsibilities (until legally changed) and so custody and arrangements may be complex.
If you are a same-sex parent going through the divorce procedure, we definitely recommend talking to a family lawyer. Alternatively, take a look at our article on same-sex parenting for more information.
same sex female parents
If both female parents are registered on the child’s birth certificate, then child arrangements will be the same as those of a heterosexual couple. This means that you can make child arrangements between yourselves or through a family court.
However, if you are not both legal parents, child arrangements could be more complex. For example, issues could arise if the non-birth mother also doesn’t have legal parental responsibility.
same sex male parents
Similar to same-sex female couples, if both male parents are registered on the birth certificate and share equal parental responsibility, then the child arrangements will follow those of heterosexual couples.
However, issues can arise if your child was born using a surrogate, a common option for same-sex male couples. Legally, the child’s birth mother has full parental responsibility. In most cases, the birth mother will share this responsibility with one of the fathers, but not necessarily both. This depends on who has been granted parental responsibility for the child and who is on the birth certificate.
Alternatively, all three parents could have parental responsibility. When it comes to the divorce procedure, it may be best to sit down with a solicitor to discuss your options and reach an agreement together.
For some individuals, finding your true identity can come once you already have a family. For example, if you have a biological child, but have since transitioned, things can be complex when making child arrangements.
The best thing to do is discuss the situation with your child before going to family court and mediate between yourselves to find a solution.
How long will it take me to get divorced?
If you and your partner can come to a quick agreement on your divorce and the reasons behind it, you could legally finalise your divorce in anywhere between 4-12 months.
However, be aware that any form of dispute will elongate the divorce procedure. For example, if there are complexities with children, finances, or property, your court hearings could take anywhere between 6-12 months.
will my divorce be expensive?
If you decide to do your divorce yourself and there are no children or large finances involved, then a divorce can cost as little as £550 (the cost of the divorce petition).
However, doing your divorce yourself, especially if you’re LGBT, can cause more harm than good. Bear in mind that the overall cost of a divorce depends on so many factors that vary depending on the case. No matter which route you take, a divorce will never be a quick or cheap thing to go through.
what are the risks of a DIY divorce?
Whilst you can do a “DIY divorce”, it can be easy to make the following mistakes without a lawyer to guide you through the process:
- Errors in divorce forms, which could be thrown out of court
- Errors in finances without a full financial agreement in place
- Your agreement may not be clear and binding, which could lead to issues further down the line
- It could end up costing you more than it would to use a lawyer
will everything be split 50/50?
It’s a common misconception that assets, finances and property are split 50/50 during the divorce procedure. The court will aim to split assets in a way that’s fair and equal, but this won’t necessarily mean 50/50. The court will consider different factors such as income, children and who will have child custody.
For LGBT couples, one of the most commonly encountered issues is if you and your partner were together before the legalisation of same-sex marriage. The majority of LGBT married couples were also together before the legislation was passed in 2014. Because of this, you may have a variety of possessions, property and joint financial accounts that were already in place before you were married, and individual contributions to this may differ between each person.
In this case, you will need to gather any evidence you can to show the court who inputted what, so the estate is divided fairly.
what will happen to my property?
When it comes to property during the divorce procedure, the most common options are:
- Selling the house and splitting any money between you. This can be decided by yourselves or by the court and does not have to be split 50/50
- One of you can out buy the other and remain in the property
- One partner can remain in the house and the other can purchase a stake in the house, which means they would get a certain amount when the house is sold.
- One partner can remain in the house until a certain time when it can be sold (e.g until all children turn 18)
why do I need a lawyer for my divorce procedure?
Instructing a lawyer for your same-sex divorce case means that you will have an extra person to support you through the process. Your lawyer will ensure that you have all of your documents and papers filled in correctly so there are no mistakes. Whatsmore, the cost of not having a lawyer will outweigh the cost of having one.
Most importantly, a lawyer will fight in your corner and will make sure that you get the best result possible. In these complex cases, your lawyer will guide you through the divorce procedure from start to end and can alert you to options that you may have otherwise neglected.
Our expert team can connect you to an experienced, SRA-regulated family lawyer today, to support you through your same-sex divorce. You can contact our LGBT Lawyers team today and visit our same-sex divorce page for more information.