Can I get divorced?
The marriage has to be “irretrievably broken down” but in practical terms this has to be evidenced by one of 5 factors:
b. Unreasonable behaviour;
c. Desertion for 2 years;
d. Living apart for 2 years, and both agreeing on divorce;
e. Living apart for 5 years.
Will I be entitled to maintenance for myself/children?
The Court has the power to make various financial Orders, including spousal maintenance, depending upon the respective financial positions of each party.
The Court generally has no power to make an Order for child maintenance, save for a limited agreed Order, since the CSA.
How much does a divorce cost?
This depends how much you want to argue about between you!
Solicitors work to an hourly rate; in addition there is a Court fee payable by the Applicant at each stage. The Court can make an Order that one party pays the costs of the other, but this is contrary to the general rule. Each aspect of the proceedings is subject to a separate consideration as to costs.
How long does it take to divorce?
Again, it depends upon the arguments. A “straight forward” divorce would take 3-4 months to get a Decree Nisi, and then 6 weeks wait for the Decree Absolute. But contested financial arrangements might easily take a year to resolve, and you would not apply for the Absolute until they were concluded.
Will I have to attend court?
Not for the Divorce itself: that is a postal application. But you would need to attend at Court on most separate applications, for instance issues in respect of the children or finances.
Do I have rights to see my grandchildren?
There is no automatic right for grandparents to see the Children. They can apply to the Court for permission to make such an application, which is usually granted.
If I agree to a divorce from my wife, will she automatically get custody of our children?
The Court can make Child Arrangement Orders to provide, inter alia, where and with whom the Children shall Reside, and the Contact they shall have with the other parent. All decisions regarding the Children are based upon the Welfare of the Children being paramoun: Children Act 1989. The Court will only agree to the Children splitting their time equally between the parents if that is practical, but will strive to uphold the rights of the absent parent.
Who will decide who gets what if we split?
Firstly, the two of you will; If you cannot agree, with or without the assistance of a Solicitor, you will be advised to try to resolve matters by Mediation. If that fails, the Court will have to decide, but the procedure through the Courts is geared to encouraging you to agree. The Court also has to approve any agreement the two of you may reach.
What if my name is not on the marital home?
In the first instance, you should register your right of Occupation of the Matrimonial Home at the Land Registry. But ultimately, all assets of each spouse, whenever acquired, have to be disclosed, and certainly anything that relates to the marriage will be available for division.
Will I have to sell the house if we get divorced?
The Court has to make Orders of a financial nature as are reasonable and fair. If fairness cannot be achieved immediately, then the Court will try to provide for this later. The Court has to consider specific factors, very importantly set out in Section 25 Matrimonial Causes Act 1973, but the first priority is the welfare of the Children: that might mean a sale being delayed until later. Ideally, the Court see equality as being fair, but more often than not the financial resources are such that this cannot be achieved: the needs of the Children for a home will take priority.
What if my Spouse will not co-operate?
The Court has extensive powers to Order and assist in investigating financial disclosure, protect assets, and draw adverse inferences against reluctant parties.
What is a pre-nup?
Well-off spouses with substantial pre-acquired assets are now making arrangements in advance of the marriage to provide what should happen if the marriage failed. Such an agreement is not binding on the Court, but the Court is now prepared to acknowledge that the agreement is evidence of what the parties thought between themselves would be reasonable, and give effect to it. The agreement would have to be concluded well in advance of the marriage, involve a full financial disclosure by each, and separate legal advice for each, and be reasonable in all the circumstances.
We were never married but are splitting up – who gets what?
It is important to recognise that you have not married, and that none of the matrimonial law or rules, nor fairness, apply. There is no such thing as a “common law wife”, nor a cohabitant getting rights after a period living together. Usually it comes down to the legal title on the property. Children issues are still dealt with by the Children Act 1989.
Civil Partnership – can we divorce?
The terminology is different (“a dissolution order”), but the basic procedure is the same, as are the grounds (as above, for divorce), save for adultery, and the Courts powers to make financial Orders are similar.
Can I get physical protection?
Yes. The Court can make injunctive restraining Orders, whether you are married or not, backed up by a Power of Arrest for the Police.