MATRIMONIAL AND FAMILY DEPARTMENT ...
FREQUENTLY ASKED QUESTIONS
How do I go about getting a divorce?
Which court does it have to be in?
Does it matter who divorces whom?
We have only been married a short time when can I start a divorce ?
How do I show the marriage has broken down?
What if we can’t carry on living together, but we don’t want a divorce?
What do I need to prove to get a legal separation?
Can we just decide to separate without involving the courts?
Do I need a solicitor to start a divorce or judicial separation?
What is a Decree Nisi?
My partner has started the divorce proceedings. What should I do?
My partner owns the property in which we live/or only their name is on the rent book. Will I have to leave if we separate?
My partner has changed the locks to our home and won’t let me back in.
What can I do?
Do children automatically live with their mother?
I left the house and my children. Does this mean I do not have any rights?
How can I get my partner to help me pay the bills?
Who pays maintenance for the children?
How does the court decide how much money I should get or what I should pay my partner?
Is a 50/50 split the usual financial settlement?
Should I close my joint account?
What happens to my house if I die?
Do I legally have to tell anyone that my partner and I have separated / divorced?
We are not married. Do I have any rights?
To get a divorce in England and Wales you need to have been married for one year or two years in Northern Ireland and your marriage must be recognised as valid by United Kingdom law. You or your partner must be living in England or Wales when you apply for the divorce or one of you must have been living in England or Wales during the year before the application is made.
If your partner does not object to the divorce you can apply for an undefended divorce. If there are no children and no complicated property matters then matters should be relatively straightforward.
If your partner does not agree to the divorce, it is called a defended divorce and you will need the help of a solicitor.
A divorce will be granted by the county court if you can show the marriage no longer exists. Legally, this is known as the irretrievable breakdown of the marriage. The court will look at the evidence to prove that your marriage has irretrievably broken down. The court will accept any of the following as proof - adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation.
Representation under the legal help scheme is not available for an undefended divorce. It is advisable to try to sort out matters of this kind as far as possible before going to court, as this will reduce any legal costs that may have to be paid by you.
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Which court does it have to be in?
If the divorce is going to take place in England and Wales, it is possible to get any County Court that is empowered to deal with divorce to issue proceedings.
It is usual to use your local court for convenience's sake. Some use a court that is out of their area for fear of coming into contact with people they know in the local context. The Principal Registry in London is used by many who do not live there, for a mixture of all of these reasons or perhaps they believe that that court will handle their case better.
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Does it matter who divorces whom?
There are some disadvantages in being the one who is divorced. Firstly, you can be ordered to pay the legal fees for the divorce; this may seem (and often is) extremely unfair, a case of adding injury to insult. This is based on the old principle in the courts that if you prove your case then you get your costs, despite the fact that it is not always appropriate in the family justice system. However, if the practicalities of the actual divorce are agreed by both parties, it is also possible to agree that the two of you will share the legal fees between you, or indeed that the person who actually files the petition will not seek an order for costs against the spouse.
Secondly, you may have the unpleasantness of being on the receiving end of some legal description of your private life, especially if the divorce is based on unreasonable behaviour. It is possible to file an Answer to the allegations and try to regain control of the process by forcing a compromise on the allegations made, but most prefer to avoid the legal complications and significant expense of doing so. Nevertheless, allegations made as to unreasonable behaviour do often stick in the gullet as the contents of the Petition rarely have much to do with why the marriage broke down.
But who petitions against whom rarely spills over in to other more important areas, such as the children or finance. It is worth just checking that none of the allegations in the Petition relate to dealing with the children or to financial issues, since once the divorce is granted, those allegations become a finding of fact. Unless it is specifically agreed beforehand, these findings can be referred to in linked proceedings.
The usual way of preventing such difficulties - and much acrimony too - is to offer the Petition in draft before it is sent to the court. Any items that cause particular upset can be discussed and either watered down or left out. This is not something that everyone has to do.
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We have only been married a short time when can I start a divorce ?
You cannot start a divorce until you have been married for at least 12 months and you must show that the marriage has broken down and cannot be saved.
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How do I show the marriage has broken down?
The law says you may be able to get a divorce if you can show one of the following:
1.Your partner has slept with someone else and you find it difficult to carry on living with him or her ("adultery")
2. Your partner has behaved in a way that makes you think you can’t carry on living together ("unreasonable behaviour")
3. You and your partner have been separated for at least 2 years before you started the divorce and your partner agrees that you should both divorce.
4. You and your partner have been separated for at least 5 years before you started the divorce. Your partner does not have to agree to the divorce in these circumstances.
5. Your partner has deserted you at least 2 years before you started the divorce.
Woolliscrofts can help you decide which of these is the best one for your case.
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What if we can’t carry on living together, but we don’t want a divorce?
You can apply to the court for a separation, this is known as a "Judicial Separation" or you can simply decide to separate without involving the court.
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What do I need to prove to get a legal separation?
You need to prove one of the same grounds as for divorce. You do not need to have been married for 12 months or more.
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Can we just decide to separate without involving the courts?
Yes.
But, the advantage of using the court for a legal separation is that you can then also sort out any disagreements about who is to care for the children and also disagreements about dividing the money and property. A court order will stop your partner from breaking the agreement.
If you and your partner can agree about money matters and the children you may still want your solicitor to draw up a document to show what has been agreed, this is called a "Deed of Separation". For this you will not need to involve the court, only a solicitor is required.
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Do I need a solicitor to start a divorce or judicial separation?
It is always best to get legal advice - especially if children and money are involved.
It is vital that you are aware of all your legal rights and we could not advise strongly enough to contact us for advice.
Although it is possible to start the divorce or judicial separation proceedings yourself, you would still be likely to require advice from a solicitor about financial matters and issues involving children later on in any event.
Divorce or Judicial Separation proceedings are started by means of an official Court Document called a "Petition".
If you have children a "Statement of Arrangements" form would also need to be completed. You may have to pay a Court Fee. However, if you are claiming Income Support or being advised under the Legal Help Scheme you will not have to pay a Court Fee, but would instead need to complete a Fees Exemption Form.
The Court will require your original Marriage Certificate. If you do not have one you can get a certified copy from the Family Records Centre.
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What is a Decree Nisi?
This tells you that your divorce is almost completed.
When the court gives you your Decree Nisi you have to wait 6 weeks and 1 day before you can make your divorce final. This is to allow time for anyone who objects to the divorce to tell the court why they object.
After 6 weeks and 1 day it is possible to apply to the Court for the "Decree Absolute".This means your divorce is completed and you are no longer married to your partner.
In Judicial Separation proceedings you obtain a "Decree of Judicial Separation" instead of the Decree Nisi & Absolute.You are then legally separated but remain married.
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My partner has started the divorce proceedings. What should I do?
If your partner starts the divorce you will be sent copies of the divorce papers by the court. This will include an "Acknowledgment of Service" form, which must be completed and returned to the Court to say whether or not you agree to the divorce.
If you do not want a divorce you may need the help of a solicitor to defend the divorce. You should put on the Acknowledgment of Service form that you object to a divorce. You are then required to file an "Answer" explaining why you object. These are all matters which Woolliscrofts can assist you with.
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My partner owns the property in which we live/or only their name is on the rent book. Will I have to leave if we separate?
Not necessarily.
If your partner owns the property in which you live and you and your partner are married then Woolliscrofts could protect your interest by registering a "Notice" on the title deeds to the property. This warns other people that you have an interest in the property.
If your partner tries to sell the property without you knowing then this notice will tell any buyer that you have an interest in the property. This will also stop your partner re-mortgaging the property without you knowing.
This will protect your interest until we are able to apply to the court for a judge to decide whether you should stay in the property or not.
The judge has the power to transfer the property to you even if it is not in your name.
The judge can also decide whether the property should be sold and whether you should receive money from the sale.
If the property is rented the judge can still decide to transfer the property to you, the council will have to put your name on the rent book.
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My partner has changed the locks to our home and won’t let me back in.
What can I do?
If you own the property jointly with your partner then you are allowed to return to it.
Your partner should either supply you with new keys or put the old locks back. You may need to get a solicitor to write a letter to your partner.
If this does not work then you may need to apply to the court for an order that your partner must let you back in.
If you have been violent to your partner the court may not let you back in to the property for the time being.
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Do children automatically live with their mother?
Married parents share joint parental responsibility and come before the Court as equals. The children's welfare is the court's paramount consideration.
If there is a dispute as to with which parent the children should live, one or other of them must issue an application for a Residence Order. In considering which parent is best able to meet the child's best interests, the Court will apply the "welfare checklist" (s1(3) Children Act 1989).
The application of the Welfare Checklist points towards pragmatism:
- Who is best able to meet the child's day to day needs?
- What has the domestic routine been in the child's life to date?
- Even if there is little to choose between the two parents in terms of their actual parenting skills, are the work commitments of one more conducive to having primary care of the children? This last consideration is often fundamental and traditionally, has tended to work in favour of mothers, but increasingly, this need not necessarily be the case.
- Even where one parent does have a Residence Order in his or her favour, that does not alter the fact that the other parent retains parental responsibility and has an important role to play in the child's life. In theory at least, a Residence Order is not a passport to making important decisions about the child's upbringing on a unilateral basis.
- In the case of unmarried parents, the mother has sole parental responsibility until the father acquires it by way of an agreement, or Court Order. He will however be granted parental responsibility automatically if he has a Residence Order in his favour.
- In the case of very young children, it is a fact that courts tend to assume they are better off living with their mother unless clearly shown to the contrary. Nevertheless, there is no presumption of law and the courts have to consider each case on its individual merits. Although the odds may seem stacked against a father, the facts may mean that this is not necessarily the case.
I left the house and my children. Does this mean I do not have any rights?
No.
Joint ownership of the property will not change unless your partner obtains a court order or you agree to transfer your share of the property to your partner or the house is sold.
You are still liable to pay the mortgage as is your partner. You should try to agree to divide the payments.
If you leave your children behind, but you want them to live with you, you can apply for a "Residence Order".
However, the longer they remain living with your partner the more difficult it may be to convince the court to change the arrangements.
You can apply instead to see the children regularly. This is known as "Contact".
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How can I get my partner to help me pay the bills?
If you need urgent help to pay the bills you can apply to the judge for urgent maintenance, this is called "Interim Maintenance". Woolliscrofts can advice you about this.
You may get weekly or monthly payments from your partner or the court may tell your partner that they should pay the mortgage or rent instead of you.
You can apply for maintenance even if you are still living together and are still married.
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Who pays maintenance for the children?
If the children are living with you then your partner should pay to help you look after them.
If your partner is not paying any money for the children then you can apply to the Child Support Agency (CSA). They are the government agency responsible for collecting money for you from your partner, to help you look after your children.
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How does the court decide how much money I should get or what I should pay my partner?
This is a difficult job for a judge, because they have to be fair to both you and your partner.
Before the judge can make a decision he or she must have all the information about your income, expenses, property that you own, savings, insurance policies, pensions and shares etc. Your partner also has to give the same information to the court. This firm would, therefore, need to collect all this information from you.
After you separate you should keep copies of all your bank statements, wageslips, bills and anything you have had to pay out. This would help us to prepare the information which the Judge will require to enable him or her to make a decision.
The judge has to look at what both you and your partner need and what you can both afford. He also needs to consider whether you or your partner are looking after the children as whoever is may need more money. The judge has to consider other things such as the length of the marriage, your ages and your ability to work and earn money etc.
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Is a 50/50 split the usual financial settlement?
Recent cases concerning 'big money' - where the assets available for division clearly exceed the parties' needs - have focused on the concept of equality of outcome. This may or may not mean that the assets are divided 50/50 in these cases. What it does mean is that contributions to the running of the home and the bringing up of children are valued equally by the court on divorce to contributions made by economically rewarding work. There may be other considerations - for example, the liquidity of the assets making up the family pot, or any inheritances received, or particularly bad financial conduct on one side, which dictate that the outcome should not be equal. Fairness is the key - and a 50/50 split will not be fair in all cases.
Each case has to be looked at individually. It depends on the circumstances of those involved.
In most cases, the financial settlement will reflect what each person needs fundamentally, money to pay all the bills and to sort out somewhere to live.
Having an equal split is sometimes the starting point, but a lot of other factors have to be taken into account.
The great strength of the law is that it is flexible enough to treat each family differently. But that does make it difficult to work out what is right for you.
We recommend that you consult an experienced Family Law Solicitor for specific advice about the particular circumstances of your own individual case - to see what the likely outcomes might be. This is where Woolliscrofts could help you.
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Should I close my joint account?
Many couples do not make any changes to their banking arrangements until financial negotiations are well advanced.
But if there is a risk that large sums may be drawn out - or if there is a risk that credit or charge cards may be used inappropriately - then it may be safer to take action to prevent this.
The danger is that if an account or credit card is suddenly frozen, solicitors may be involved immediately to ask for maintenance arrangements to be set up - perhaps through the courts.
Much depends on whether you can trust each other enough to leave things as they are.
If you need to rearrange the accounts on separation we recommend that you try to agree those changes first. Think about mediation.
If you have concerns about this area then we would advise you to consult an experienced Family Law Solicitor. This is where Woolliscrofts could help you.
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What happens to my house if I die?
You need to check the way in which your home is owned. Is it in your sole name? If it is, it will pass under the terms of your will or intestacy.
There are two ways of owning a home jointly - as equitable joint tenants, or as tenants-in-common.
Many couples own their home as joint tenants, which means in such a way that if one of them dies, the other owns the property outright automatically.
This arrangement may still be the right one after separation - at least for the time being.
It is possible though to change the way in which you own any property jointly - so that if one of you dies then his or her share passes to their estate and is then dealt with under their will i.e. to set up a tenancy-in-common. This is called severing the joint tenancy by giving a formal Notice of Severance to the other joint owner.
Your solicitor can prepare this for you. You should always take advice on this point because it may lead to claims against your estate if you die.
It may be helpful to prepare a new will early on - even if this is only a temporary measure.
The decree absolute of divorce automatically alters your will in so far as it relates to the other spouse. It is important to consider changing your will at that stage in any event.
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Do I legally have to tell anyone that my partner and I have separated / divorced?
You should tell the Inland Revenue as your separation may effect your tax position.
If you receive benefits you should also tell the DSS as you may be entitled to some additional help.
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We are not married. Do I have any rights?
Even if you are not married, but you have children you can still apply for maintenance for your children through the Child Support Agency.
If you own a property together and you want to sell but your partner does not, you can apply to the court and ask them to decide. The court can also decide if one of you should stay in the property.
If only your partner owns the property you may still be able to show you have a share in the property. For example, if you have paid for improvements to the property or helped to pay the mortgage, you may be entitled to claim a share in the property. Or if it was always intended that you should have a share in the property.
If you cannot show that you have a share in the property, but you have children together, you may be able to make a claim for a share of the property on the children’s behalf. This can be done under the Children’s Act, and Woolliscrofts can provide advice and assistance in this respect.
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Contact Woolliscrofts on FREEPHONE 0800 083 97 87,
or send us a free no obligation enquiry by e-mail.
There is no charge for an initial enquiry, and contacting us does not commit you to using our services.