Divorce & Family Law

Divorce - Frequently Asked Questions

• How do I get divorced?

  • There is only one ground for divorce which is that the marriage has broken down irretrievably. You have to prove that and base the Petition on one of the following facts:-

    • That your spouse has committed adultery.
    • That your spouse has behaved unreasonably.
    • Your spouse has deserted you for a period of 2 years or more.
    • You have lived separate and apart for a period 2 years and your spouse agrees to a divorce being granted.
    • That you have lived apart for a period of 5 years when no consent from the spouse is necessary.

    The process of getting divorced is relatively simple – in theory. The steps are:-

    • Issue a Divorce Petition with appropriate documents.
    • Have the Court serve it on your spouse.
    • When the Acknowledgment is returned, lodge a Statement in Support of an Application for Special Procedure Divorce. Nearly all divorces are “Special procedure”.
    • Await the Court notifying you of the date for hearing.
    • The Court will send you a Decree Nisi.
    • After 6 weeks and 1 day you can apply for Decree Absolute.

    If the Petitioner (the person issuing the Divorce Petition) does not apply for a Decree Absolute after 6 weeks you can make an Application to the Court on notice with the appropriate fee 3 months after that.

    WARNING

    Whilst the procedure is relatively simple, issuing a Petition of Divorce unlocks a number of further issues which can involve children and finances. If you are not fully aware of the situation you can make a mistake without appreciating it which can be impossible to rectify in the future. Our advice is to see a solicitor.

• How long will it take to get divorced?

  • This depends upon how busy the Court is and how much co-operation you get from your spouse. If everything goes smoothly you should expect to have a Decree Absolute about 4-5 months from issue of the Petition, it can take longer. Our advice is to delay applying for a Decree Absolute until financial matters are resolved.

• Does it matter who issues the divorce petition?

  • The only reason that there is a benefit to issuing the Petition is that you are in control of the progress of the divorce. The grounds of the divorce and who is the petitioner do not matter from a financial point of view or in relation to children. The only time that the contents of a petition matters is if there is an allegation in it which is so serious that it cannot be ignored and amounts to “behaviour”.

    If we act for a Respondent and there are issues in it relating to either alleged domestic violence or matters which could have an effect on how the children matters are dealt with we would reserve the right to argue these matters in either financial proceedings or children proceedings.

• What if I cannot find the original marriage certificate?

  • A duplicate marriage certificate can be obtained from the registry office or the church where you were married at a nominal cost. A photocopy is not admissible. The only trouble arises where the parties were married abroad and there is  difficulty in obtaining a copy of the original marriage certificate.

• What is a contested/uncontested divorce?

  • Virtually every divorce presented in front of the Court, by the time it gets there is an uncontested divorce. This is where the Respondent (the receiver of the Petition) does not dispute the contents of the Petition. A contested divorce would be one in which either the Respondent does not wish to get divorced or the contents of the Petition is disputed as are the grounds for the divorce.

    In those circumstances the procedure has now become simplified so that you can claim that the real reason for the breakdown of the marriage was the Petitioners and not the Respondents. In practice there seems little point in defending a divorce and claiming that you are still married. By the time it has got to that stage it will be matter of theory only and unless there are good reasons for remaining married the reality is that you are indeed separated and it will be sensible to bring the marriage to an end.

• Can we get divorced without going to Court?

  • You cannot get divorced without lodging papers at Court. Save in exceptional circumstances virtually all divorces are dealt with on paper.

• What happens at court?

  • So far as divorce is concerned, the Court considers everything on paper and grants or refuses a Decree on that basis. If a Decree is refused you will have been notified prior to that and have an opportunity to repair any defect.

• How can I protect my assets in a new relationship?

  • This is a complex area and requires expert advice. The usual way if you are not going to get married is to have a Living Together Agreement. You can also buy any property in fixed shares. If you are considering re-marrying it is possible to enter into a Pre-Nuptial Agreement.

• I was married abroad, can I divorce here?

  • The Courts in England have jurisdiction if:

    • The Petitioner and Respondent are habitually resident in England and Wales
    • The Petitioner and Respondent were last habitually resident in England and Wales and the Petitioner or the Respondent still reside there.
    • The Respondent is habitually resident in England and Wales.
    • The Petitioner is habitually resident in England and Wales and has resided there for at least a year immediately prior to the presentation of the Petition.
    • The Petitioner is domiciled and habitually resident in England and Wales and has resided there for at least 6 months immediately prior to the Petition.
    • The Petitioner and Respondent are both domiciled in England and Wales.
• When can I remarry?

  • You are free to marry after a Decree Absolute has been granted. However you should not remarry unless a financial settlement has been agreed and incorporated into a court order or at the very least your financial claims have been protected either in the divorce petition or by issuing an application for a financial remedy order. It is always advisable to seek specific legal advice where finances are involved.

• Do I still need to pay the mortgage if i no longer live in the house?

  • If the mortgage is in joint names then you will remain jointly and severally liable for the mortgage regardless of where you live. If the mortgage is in your sole name then you will be solely liable to pay the mortgage regardless o where you live. If you are not named on the mortgage then you have no liability to pay it.

    This is a complex issue. If no one pays the mortgage both of you are likely to have an adverse credit rating which may be an inconvenience when reapplying for a mortgage on a different property. The rule of thumb is that the person who remains in the property is responsible for paying the interest on the mortgage. This is regarded as “Occupation Rent”, however if the person in the house cannot afford to pay the full mortgage or refuses to do so then specialist legal advice should be sought urgently to hopefully avoid the mortgage falling into arrears.

    Any capital repaid by either party should be taken into account when there is a division of the property. It is important to take proper legal advice on what is a difficult subject.

• What is a Decree Absolute and when can I apply?

  • A Decree Absolute brings your marriage to an end. It has various effects which are all highlighted in the actual Decree Absolute itself. It can affect dispositions made under a Will. If either spouse were to die any rights to widows benefits or payments under insurance policies and pensions may be affected.

• Should I make a Will after Decree Absolute?

  • Yes. A Decree Absolute will affect entitlements under the terms of any Will. As well as dealing with finances you can also appoint a Testamentary Guardian so that they would have the power to look after children if anything happened to you. It is always advisable to have a valid Will and to keep it under regular review. It is essential to make a Will or amend a Will when a relationship ends as you need to ensure that your Will still accords with your wishes. Our Wills team can discuss making or changing your Will with you. You should also ensure that your named beneficiaries under any insurance policies or pensions are kept up to date and in accordance with your wishes.