FAQs
Please find below answers to many frequently asked questions on various topics within family law.
Alternatively pdf documents are available here for download:
Divorce/dissolution
These are answers to some frequently asked questions regarding divorce/dissolution.
Why can’t we get divorced or disolve our civil partnership based on the grounds of irreconcilable differences?
The only ground upon which you can rely to obtain a divorce is that your marriage has ‘irretrievably broken down’. In order to demonstrate this, you must rely on one of five facts: adultery; unreasonable behaviour; desertion for more than two years by your spouse; separation for a period of more than two years on the basis that you both agree to divorce, or your separation for a period of more than five years. It is important to discuss which of these options might be the best one for you, and, if possible, to agree this with your spouse beforehand, in order to make the process as amicable and as efficient as it can be.
The basis for a dissolution of a civil partnership is the same as above, however, you may not rely on the fact of adultery. If the breakdown of your relationship was due to infidelity on the part of your partner, this can be covered under the unreasonable behaviour fact.
How long does it take to get divorced? My friend’s divorce seemed to take years…
People generally think that getting divorced takes a long time. In fact, the actual divorce process is the dissolution of the marriage; this will take a minimum of four months from the time that the divorce petition is issued to the time when you can first apply for decree absolute (final dissolution order) assuming there are no major complications along the way.
It is usually resolving the financial arrangements between a couple that take longer to sort out, and this can slow down the divorce process as a result. There are ways to make sure that momentum is maintained in relation to resolution of finances and they are usually resolved within six to nine months from issuing divorce proceedings in straightforward cases.
Is getting divorced complicated? Surely I can do it myself on the internet?To get divorced is a relatively straightforward exercise, unless it is contested by the other party, at which point things can become more complicated. Having said that, if the paperwork is prepared incorrectly even in an uncontested matter this can lead to problems later on, and sometimes the resulting costs can be significant. In some instances, a client has started the process by him/herself, but because the paperwork has not been prepared correctly, they have had to seek professional advice. It can be more expensive to get things back on track and progress their divorce to a conclusion.
Divorce/Dissolution & finances
These are answers to some frequently asked questions regarding finances following divorce and separation or dissolution of a civil partnership.
All of the assets are in my partner's name …
The court has a wide discretion when dealing with financial matters in a divorce or civil partnership dissolution. All assets whether solely or jointly owned will be considered part of the matrimonial pot for consideration and potential division between you.
How long does it take to sort out the finances?
This will depend on your particular circumstances. Before you can negotiate a financial agreement there should be full and frank financial disclosure of both of you and your partners assets, debts, income and outgoings. This exchange of information can be done on a voluntary basis if you both agree.
In some cases this voluntary approach may not be possible and then either party may issue an application for a financial remedy. This means that the court will set a timetable imposing a date by which financial disclosure must take place, followed by a date for both parties and their legal advisors to come to court to consider how the case should move forward following disclosure.
In the majority of cases where proceedings are issued, matters are concluded in approximately three to nine months. Where things are either particularly straightforward or complicated they might be shorter or longer respectively.
Even if proceedings have been issued, both parties are under a duty to continue to negotiate and the court will expect this to happen. If you reach an agreement, you may not have to go to court at all. It is important to remember that whilst you might reach a financial agreement, it can take longer to implement the terms of the agreement as you may, for example, have to sell a property or realise assets.
I am concerned about the possibility of selling the house whilst the children are still at school. Will I have to?
Sometimes it is possible to postpone the sale of the house until the children have left school but it depends on many factors. If possible, both parties should be placed in a position to re-house and this can result in the family home having to be sold straightaway. If this is not appropriate, then the primary carer of the children may be allowed to stay in the house until the children leave school but every case is different and a lot depends on the value of the property and the means of both parties.
Who pays the costs?
You may be ordered to pay your partner's costs but these costs will only be for the work necessary for the divorce and not the costs for resolving finances or issues about children. The reason for the relationship breakdown, and who instigates proceedings, is largely irrelevant to the financial outcome. Exceptions to this are where one party has deliberately spent or hidden matrimonial assets, or if a party fails to comply with court orders. The court may then take this conduct into account in either the order it makes or by ordering the noncomplying party to pay costs, but this is unusual.
Will I have to share my pension?
A pension is an asset that is considered for division. This can be achieved, where appropriate, by a pension sharing order or by giving your partner another asset of similar value. In the event that a Pension Sharing Order is made, the agreed or ordered share of your pension would be deducted from your fund and placed into a pension fund in your partner's name.
It is recommended that you take advice from an Independant Financial Advisor.
Pre-nuptial agreements
These are answers to some frequently asked questions regarding pre-nuptial agreements.
Why should I consider a pre-nuptial agreement?
You might want to consider a pre-nuptial agreement if you are concerned about protecting the assets that you have acquired before you marry, or to regulate the financial arrangements between you if you divorce. They can be especially important if you are remarrying or marrying later in life and want to ‘ringfence’
the assets you have already acquired, or where you have children from previous relationships and want to ensure that the assets you already have are eventually passed to them.
Is a pre-nuptial agreement legally binding?
At the moment, pre-nuptial agreements are a factor to be considered by the courts on divorce. In recent years the courts have given increasing weight to such prenuptial agreements - how much weight depends on the individual facts in any one case. What a pre-nuptial agreement does is show evidence of intention by both
of you at the outset of your marriage. It is necessary for both of you to seek independent legal advice before entering into a pre-nuptial agreement. Full disclosure of your respective financial positions is essential.
It’s not very romantic…how will I be able to broach the subject without seeming negative?
When you are in full flow with your wedding or civil partnership ceremony it is not necessarily the first thing you think about. However, it can be discussed amicably if done well in advance of the event.
