Divorce And Family Frequently Asked Questions
Separation can be dealt with in one of four ways, and there are important differences:-
- Divorce Proceedings - either immediately or some time in the future. These proceedings will result in the marriage being dissolved and each party being free to marry again.
- Judicial Separation - the procedure for a Judicial Separation is the same as for Divorce, except for the Decree Absolute. The important difference is that it does not result in the dissolution of the marriage. However, the court pronounces that the parties, while remaining married, are not expected to live together. This is what many people think of as legal separation.
- Formal Separation Agreement or Deed of Separation - if no court proceedings for either Divorce or Judicial Separation are to be commenced, the parties to the marriage can still settle other matters by reaching an agreement privately between themselves e.g. arrangements for the children and financial matters. A Separation Agreement can be drawn up and signed by both parties. This is a legal document and it settles practical issues, but it does not dissolve the marriage.
- None of the above, it is perfectly reasonable to simply separate - in other words, live at different addresses. However, it is usually a good idea to record in writing how you want to settle practical matters, so as to avoid misunderstandings and future arguments.
Yes, it is possible to oppose a petition for divorce. However statistically is very rare for divorces to be opposed. It is often best to check before commencing proceedings if there will be any opposition.
Usually a straightforward undefended divorce with no delays will take approximately 4 to 5 months from start to finish. If there are no other outstanding issues between the parties (for example regarding children or the family finances).
However, where negotiations continue regarding other matters they can take longer to resolve. That very much depends on how difficult it is to reach an agreement.
In a straightforward divorce, the court fees total £600. Solicitor's bills are calculated on how much time they spend on your case.
When married partners separate, they have to agree how to separate their finances. If the marriage is very short i.e. less than 3 or 4 years, and there are no children, it is possible that the court would look at who paid for things, and who brought sums of money into the marriage, such as a large deposit on the home.
But if the marriage was longer, or if you have children, this would not generally be the right answer.
It is generally accepted that all assets are joint property, regardless of who actually paid for them. Similarly, when sorting out the family finances due to separation, debts and other liabilities would be considered joint, whichever name actually appears on the documentation.
So if you have a family car, which is being paid for on a loan in the name of one of you, it will usually be regarded as a family asset, and a family liability.
You have to show the court that your marriage has broken down 'irretrievably' (one or both of you feel that you cannot stay married to each other).
You can do this by proving one of five facts:
1. Your husband or wife has committed adultery and you find it intolerable to live with them. You prove adultery by your spouse admitting it - if they won't you need to speak to your solicitor. If you continue to live with them for a period of more than 6 months after you find out about the adultery you will generally not be able to use this as your 'fact.'
2. Your husband or wife has behaved in such a way that you cannot reasonably be expected to live with him or her. This covers all kinds of bad behaviour - you need to think about the main things that have made your spouse difficult to live with. These will be summed up in a petition in a few short paragraphs. You cannot rely on single events that took place more than six months ago.
3. You have lived separately for more than two years and your husband or wife consents to the divorce. This is often called a 'no fault' divorce. You can have periods of living together as long as they don't add up to more than six months and you have been apart for at least two years.
4. Your husband or wife deserted you for a period of more than two years. Desertion means leaving your husband or wife without his or her agreement and without good reason.
5. You have lived separately for more than five years. Your husband or wife does not need to agree to this. He or she cannot defend this petition, but can ask the court not to grant the final decree because of a major financial or other type of hardship.
Your pension funds are part of the family assets. You have accumulated these funds during the marriage but when you separate or divorce, and negotiate ideas about how to separate your family finances, you must consider the pensions along with the other assets.
There are different ways in which pension funds can be dealt with in divorces:
Setting-off
The most popular solution. If there are other assets, such as a house, it is usually possible to reach an agreement where the person without a pension fund (or with a much smaller one) should receive a large proportion of the value of the other assets instead of part of the other one's pension fund.
Pension Sharing
Part of the pension-member's pension can be split off from the fund and used to create a pension fund for the other person. The split off section becomes the other person's own pension at the time of the split.
Earmarking
This option is more rare. It means that the person without a pension will receive a proportion of their ex- husband / wives pension when they reach pension age. For example, if a husband starts to collect his pension at age 65, the ex-wife will wait until her ex-husband is 65 before she receives her share of the pension fund.
A Finance Order covers all the financial aspects of your divorce including:
- Your house
- Car/s
- Savings
- Pensions
- Bank accounts
- Contents of the house
- Debts
- Incomings and outgoings etc
The divorce procedure doesn't do this automatically. The costs of this aspect of your divorce depends entirely on how complicated your financial picture is, and how difficult it will be to divide it between you both and enable you to go your separate ways.
To give you some idea of the costs involved, if you and the other side can reach an agreement fairly easily, with only a couple of details to clarify, we could document your agreement for you for around £300 - £400.
But if it is necessary to seek the assistance of the court in finding the fair answer, your costs will inevitably be far more - around £600 - £700 per visit to court. You can expect a financial action in court to cost at least £1,500, if you settle it during the course of the process. If it proves impossible to settle it, and you have to ask the judge to hear the case and decide for you, your costs will be several thousand pounds.
Your solicitor will:
- Meet with you
- Consider information and options
- Prepare documents
- Write letters
- Telephone or receive calls
- Appear for you in court
- Meet witnesses to take statements
This depends on several different considerations, the most important of which is children. If you have small children living with you when you divorce, the court will not let you finish the divorce until it is satisfied that the arrangements for the children have been settled in the best way available to them.
