Matrimonial FAQs

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Divorce

Who can start divorce proceedings?

Anyone who has been married for over a year can start divorce proceedings provided he or she is either living in England or Wales. It doesn’t matter where the couple were married. You will need an original marriage certificate which will be retained by the Court.

I haven't been married long and it has been a disaster. How quickly can I get a divorce?

You can’t obtain a divorce until you’ve been married for one year. In some circumstances you’ll be able to apply for judicial separation or annulment of your marriage before the 12 months has passed. Another option is to separate now and get divorced after the 12 months have passed.

Our family home is in my spouse’s sole name and they've threatened to lock me out. Can they lawfully do this?

“No”. You have the right to live there until after your divorce. Provided you stay put in the home your spouse cannot evict you without a Court Order. Your solicitor can also prevent your spouse from selling the home without your knowledge.

Are all the issues dealt with before the divorce is finalised?

The divorce is treated separately from financial matters and the arrangements for any children. It’s not necessary for financial arrangements to be completed by the time the divorce is made final. Although, we would advise delaying the Decree Absolute until all financial matters are resolved. This can help to avoid costly contested proceedings after the fact.

Can I stop the divorce?

Even if you’ve started a divorce you can stop it at any time until the Decree Absolute ending your marriage is granted. It’s harder to halt the divorce process if it’s your spouse that has started the divorce as he or she would generally be in control of the process and the speed in pursuing it.

What if I’m not sure I want a divorce?

If you don’t feel your marriage has finally ended you may want to consider seeking counselling to achieve reconciliation. Even if a divorce does take place you may find the use of mediation or conciliation helpful to help you reach agreement with your spouse on any aspects that are disputed. You could also look at having a Separation Agreement rather than a divorce.

Is no blame divorce a thing?

If you’re looking to get divorced here in the UK the options currently available to you are unreasonable behaviour, adultery, 2 years separation by consent, 5 years separation or desertion. These desertion options don’t attach any blame but aren’t always practical because of the time frame. But what if none of those apply? What if the reason your marriage has irretrievably broken down is because you’ve simply grown apart and you don’t love each other anymore? The good news is that from April 6, 2022 we should have another option based on a no blame divorce. We can then simply issue the petition based upon the fact the marriage has irretrievably broken down and it’s nobody’s fault.

Can I do the divorce myself or do I need a solicitor?

You don’t have to hire a solicitor if you want to get a divorce. You can go onto the court website www.gov.uk and complete the forms online or download all the forms you need to fill out for free. There will be a court fee of £550 but dependent on your income you may even qualify for a partial discount of those fees. You’ll find all that information on the court website. If you’d prefer us to do this for you, we can, or you can do it yourself online. Remember that sorting out finances is a separate issue.

Can I divorce on five years separation?

Yes, you can issue a divorce petition based upon five-year separation. The person who’s filing the divorce (the petitioner) doesn’t need the consent of the respondent. There’s also no defence to this petition based on five years, except to deny the separation.

What are the steps in the divorce process?

A divorce starts by submitting a divorce petition. The person who submits the divorce petition is called the petitioner. The divorce petition is then sent to the other party, who is called the respondent along with an acknowledgement of service. The respondent has to sign the acknowledgement of service to say that they’re in agreement with the divorce and have seen the divorce petition. They should send the acknowledgement back to court. The court will then send the acknowledgement of service to the petitioner. The petitioner can then apply for Decree Nisi. Once the Decree Nisi is pronounced you can apply for your Decree Absolute after six weeks. The Decree Absolute brings the marriage to an end and the divorce process is complete. Remember that sorting out matrimonial finances is a separate issue.

What can I do if my ex didn't show up at mediation?

What to do if you attended mediation but your ex doesn’t turn up. Mediation is a voluntary process, so no one can be forced to attend mediation if they don’t want to. But it’s a prerequisite of the court. If your spouse doesn’t turn up, ask your mediator to provide you with a signed FM form to tell the court that mediation couldn’t go ahead because your spouse didn’t turn up. The court will then know, you’ve attempted mediation, it didn’t work, and then they will process your application.

Do I have to go to mediation if there has been domestic violence?

Domestic violence or domestic abuse is taken into account if you’re considering mediation and will be very specific to you. If you feel that mediation is appropriate, depending on your circumstances, it would be sensible to contact the mediator in advance so that they can accommodate you by having separate rooms and doing what is called a shuttle mediation. Speak to the mediator, see what support they can offer and what their facilities will allow, and take it from there.

Finances

What Financial Orders can the Court make?

The Court has the power to make several different orders, including:

  • Maintenance payments
  • Maintenance payments for children
  • Lump sum orders
  • An order transferring the ownership or tenancy of a property or an asset
  • A pension order

What if we reach an agreement between ourselves?

If an agreement is reached on financial matters, there does not need to be a full Hearing. The Court can be asked to make an Order setting out the terms of the agreement and this is called a Consent Order. You do not normally need to attend Court if you and your spouse have agreed the terms of a Consent Order.

What is a Clean Break?

A full clean break means neither spouse can make any future financial claim against the other. This would mean neither party could claim maintenance or a lump sum of money, and no claim could be made against the estate of a party if one of you dies. A Court Order is needed to provide for a full clean break financial settlement, and you will need to see a solicitor to draft all the necessary documents.

What happens if we can’t reach agreement on our finances?

If you are not able to reach an agreement it may be necessary to start Court Proceedings, but we can guide you through this process.

What is Financial Disclosure?

Disclosure is where you and your spouse provide each other with complete and comprehensive financial information about yourselves. This helps us and the Court to guide you on what a fair settlement would be.

What information will I need to provide for financial disclosure?

It is important to get accurate valuations on all the assets whether they are in your name or jointly with your spouse. You will be requested to provide items such as a valuation of the home, a redemption figure for your mortgage, bank statements, credit card statements, transfer values of pension schemes, values of stocks, shares or any bonds or other assets.

What is a Consent Order?

Once you and your ex have reached an agreement on the matrimonial finances this can be drafted into a Consent Order for the Court’s approval. You will not need to attend Court, but it is important to obtain a Consent Order so that there is certainty for the future and neither of you can seek to alter the terms of the agreement reached. Most Consent Orders contain a Clean Break clause which will prevent either one of you from trying to claim more money in the future.

Do we have to have a Consent Order?

You do not have to have a Consent Order, but this is the best way to ensure that any agreement reached is binding on you both. You will need to consult a solicitor to draft the Consent Order for you and ensure all the Court formalities are complied with.

Can my ex force me out of the house?

If you are married to your ex, they cannot force you out of the house, even if they are the sole owner. As a spouse you have the right to live in your partner’s home. We can register a Matrimonial Homes Right Notice on the property to prevent a sale taking place without your consent.

If you are not married the position is more complicated and much will depend upon how the house is owned and whether or not you have children together. We can help secure your position and advise on the best course of action for you.

Children

What orders can the Court make regarding the Children?

There are a range of Orders which the Court can make including: 

  • Parental responsibility
  • Child Arrangements Order- dealing with residence and/or contact
  • Prohibited steps
  • Specific issue

However, no Order will be made by the Court unless it is necessary and in the best interests of a child to do so. Court Orders are not necessary if an agreement is reached.

What is parental responsibility?

Parental responsibility is the set of rights, duties and obligations which a person has regarding a child. It includes such things as the right to give consent to medical treatment.

Who has parental responsibility?

Married parents have joint parental responsibility.

If parents are not married, only the mother has parental responsibility. However, an unmarried father can get joint parental responsibility in certain ways:

  1. For children born after December 1st 2003, if the father is named on the birth certificate.
  2. By marrying the mother
  3. By entering into a “Parental Responsibility Agreement” with the mother (this must be on a prescribed printed form)
  4. By obtaining a Child Arrangements Order from the Court which provides that a child live with the father
  5. By applying to the Court for a Parental Responsibility Order
  6. By being appointed a guardian either by the mother or the Court, although in these cases he will assume parental responsibility only on the mother’s death

Various other people may also acquire parental responsibility. A Local Authority will acquire parental responsibility if a Care Order is made in relation to the child, or anyone who is granted residence of the child, or even the Court if the child is made a Ward of Court. Family members will also acquire parental responsibility if they are made Special Guardians.

Can I move away with my children without my ex’s consent?

If your ex has Parental Responsibility for your child then they have the right to be consulted about where the child lives, which school they go to etc. If you want to move to a different part of the country or even abroad, you will need to discuss this with your ex and try to agree contact arrangements etc. If you cannot agree you can apply for a Specific Issue Order from the Court. The Court will look at all the circumstances, but if the parent who the child lives with is moving because of work or family commitments it is likely the Court will agree to the child moving and will grant a Specific Issue Order.

Can I stop my ex introducing the children to their new partner?

If your ex has a new partner, then it is inevitable that sooner or later they will want your children to meet them. This can be a difficult time for the children, and it is something which ideally should be discussed and agreed between parents. Mediation may be able to help with this if you find it difficult to talk to your ex.

If there are very good reasons why the children should have no contact with the new partner it may be possible to obtain an order from the Court preventing this.

How can I ensure my ex sticks to contact arrangements with the children?

If your ex is not very good at sticking to an agreed pattern of contact it might be a good idea to seek a Child Arrangements Order which clearly sets out the contact they should have with the children.

Can I take the children on holiday without my ex’s agreement?

You cannot take the children on holiday abroad without the consent of everyone who has parental responsibility unless the children are living with you under the terms of a Child Arrangements Order. If you have a Child Arrangements Order stating the children should live with you, you may take them abroad for up to 28 days without your ex’s consent. Otherwise, you will need their consent (a letter will usually suffice) or a Court Order.

How do I have contact with my kids if my ex won’t let me see them?

A frequent issue when parents separate is that one parent is no longer in agreement with the other parent having contact or regular contact with the child. If you’re the parent looking to establish regular contact with the child, then; Step 1: Speak to your ex to find out what their issues and concerns are. If between the two of you, you can’t resolve these issues then Step 2: Attend mediation. The mediator will help both parents try to communicate more effectively and iron out those issues and concerns. If mediation doesn’t work, then Step 3: Make a court application. If you make an application the court will invite both parents to attend a hearing and listen to those concerns and issues. So long as the court is satisfied that there is no risk to the child having contact with the other parent then the court will make a Contact Order.

Should I stop contact if my ex isn't paying maintenance?

If you’re not getting maintenance or not getting regular maintenance from your ex, don’t retaliate by stopping contact. Contact the Child Maintenance Service; they’re an organisation that are there to help and support you in getting maintenance for the children. If you stop contact the only person who loses out will be the child or the children. You might not think it’s fair but think about what’s in the best interest of the children. If they enjoy having contact with your ex, let it go ahead. Remember that your relationship with your ex and your children’s relationship with their parents are two separate issues. Don’t trade one off against the other.

Can my ex stop my kids meeting my new partner?

The answer is no. Unless seeing the new partner is going to put the children in danger then no, your ex doesn’t have the right to make that demand of you. In most cases, both parents have Parental Responsibility, which gives both of you that day-to-day responsibility. So, if you think it’s the right decision to introduce your new partner to your children then go ahead. If your ex tries to stop contact because of this, you may have to get a Court Order.

I'm worried that my children's wishes and feeling aren't being considered

If you’re worried that your children’s wishes aren’t being communicated accurately, particularly those who are already in proceedings relating to children, you can ask the court to bring in The Children and Family Court Advisory and Support Service to assist. CAFCASS can produce a report and where the children are of school age and able to communicate how they feel. CAFCASS can go into the school or perhaps after school and speak to the children about what’s going on between parents and establish their wishes and feelings. This is called a wishes and feelings report. CAFCASS will communicate that to the court and act as an independent advisor for the judge.

Can I change the name of my child?

If you want to change your child’s name legally, you need to have the permission of everybody that has Parental Responsibility for that child. So typically, the mother and father, but if anyone else has Parental Responsibility which can sometimes happen, you’ll need to get their permission as well. If you can’t get permission from everybody with Parental Responsibility, then you would need to make a court application.

Do stepparents get Parental Responsibility?

If you leave a relationship where there are children involved, you both have Parental Responsibility and you remarry, can the stepparent (your new wife or your new husband) obtain Parental Responsibility? Yes, they can. By virtue of you marrying them, they are able to obtain Parental Responsibility. If you and the children’s other parent agree, then you can enter into a Parental Responsibility agreement which all three of you sign, if one of the biological parents who already has Parental Responsibility doesn’t agree then it will require a court application.

Unmarried Couples

Can my ex (unmarried partner) make a claim on my house?

If you were an unmarried couple living together in a property that was in one person’s name, is the other person entitled to a share of that property? This will depend on several things. Have they been paying into the property? Have they been helping pay off the mortgage or contributed to the deposit? Have they helped with home improvements? If the answer to any of those questions is yes, then they may be entitled to a share of the property’s value. You should get advice, the law which applies to unmarried couples differs from married couples. It’s better to be clear about the arrangements at the beginning and agree things in writing.

Pensions

What are Pension Orders?

The Court can order that on the retirement of a spouse his or her ex-spouse should have part of his or her pension and/or lump sum paid to them instead. This is called an “attachment” order.

Alternatively, the Court has the power to “share” a pension between spouses at the time of the divorce rather than the division having to wait until retirement. This means that a percentage of your spouse’s pension can be transferred into a pension of your own.

Can I stop my ex claiming a share of my pension?

Pensions are treated as a matrimonial asset by the Courts. Sometimes they can be the highest value asset. The Court is therefore unlikely to disregard the value of the pension when looking at the division of your assets.

This does not mean that your ex is necessarily entitled to half your pension though. The Court will look at the finances as a whole and will take into account the value of any pension your ex may have. If your ex is entitled to a share of your pension you may be able to pay them a greater lump sum from the sale of the matrimonial home for example, rather than splitting your pension.

There are many factors taken into account and options to be considered and we can help guide you through the best options for you and your ex.

Can I claim half of my ex’s pension?

If you are separating or divorcing, it is important to sort out all the matrimonial finances and this will include any pensions that you or your spouse may have. You are not automatically entitled to claim half of your spouse’s pension, but the value of their pension will be taken into account when looking at a division of the assets. If your ex has a pension that is worth considerably more than yours, it is likely that you will be given a share of the pension.

How can I find out how much my ex’s pension is worth?

If you are separating or divorcing you will need to sort out all the matrimonial finances -including any pensions that you each may have. We will seek ‘full disclosure’ of your spouse’s assets. This means that we will ask for copies of any bank accounts, pay slips, investments, and debts. We will also ask to see confirmation of the current transfer value of your spouse’s pension.

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