Family and Children FAQs
What can we do for you?
How can I get a divorce?
You need to show that the marriage has irretrievably broken down. This can be done by proving that one of five situations is present. Three of these involve you being apart for least two years (2 years separation with consent, desertion for 2 yrs, and separation for 5 yrs). The other two (adultery and unreasonable behaviour) have no time limitation.
If you think you have grounds for a divorce you should consult a solicitor who will draft the divorce petition for you. From the issue of the petition to obtaining the final decree of divorce can be as short as 4 months.
The divorce petition is served upon your husband/wife and they have to complete a form confirming they have received the papers.
The judge considers the papers and decides whether there are grounds to grant a divorce. You will rarely need to attend a court hearing on the divorce itself.
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My wife has issued a divorce but I want to stay married
Common sense tells us that it is only possible to have a happy marriage if both people wish to be married. Opposing a divorce is unlikely to result in reconciliation. It takes two to tango! Defending a divorce can be a very expensive and lengthy process and even if successful is unlikely to get the two of you back together.
If you feel strongly then your best option would be to try a non-legal route e.g. counselling but that of course depends on the other party. Otherwise it is better to engage in the process and to try and secure the best possible outcome for any children and for yourself financially.
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What is the effect of divorce on our children?
The court has to consider in every case whether the arrangements for children are satisfactory.
The person who issues the divorce has to complete a form setting out what those arrangements are. If the court is unhappy with the arrangements e.g. because there is a dispute about with whom the children should live, or how often they should see the other party, then the court will investigate the issue and may delay granting the divorce until the issue has been resolved.
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How does divorce affect my financial position?
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Income: the court encourages parties involved in a divorce to be self sufficient and therefore orders requiring one party to pay maintenance to the other are becoming less frequent. However if one party earns a lot more than the other, then maintenance may well be paid either for a limited period or very occasionally for life.
Whoever primarily looks after the children will be entitled to receive child support payments from the other party. These are calculated using a formula adopted by the Child Support Agency.
Capital: for most people the major capital asset is the home. Whether the home will be sold upon the divorce will depend upon many factors including whether there are children, how the mortgage on the house could be afforded if it were not sold and whether it would be possible to re-house the parties at lower cost. The courts approach is to attempt to be fair to both husband and wife, to take account of the financial background of the marriage and most importantly to consider the interests of any children.
Other capital assets – savings, pensions, businesses – are also taken into account when dividing up the family assets and for most couples the eventual outcome will attempt to make the parties as equal as possible, which does not always mean a 50:50 split.
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He/she left me – does that affect the financial settlement?
Generally, no. The court rarely considers the behaviour of either party when dealing with financial matters upon a divorce unless that behaviour has had adverse financial consequences e.g. one party spending recklessly without the other party’s knowledge
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Do we have to divorce – could we just separate instead?
If you believe there is no prospect of reconciliation, then there may be many advantages, provided you have grounds to do so, in obtaining a divorce. If however you are unsure that the marriage has broken down or do not have grounds to issue an immediate divorce i.e. neither party can claim the other party has committed adultery or behaved unreasonably, then there may be advantages in preparing a separation agreement which resolves financial matters and arrangements for the children. By its very nature this has to be agreed so if there is dispute this cannot be used.
When the divorce is eventually issued, the agreed financial terms will be incorporated into a court order.
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We are not married but are splitting up – what happens?
Currently the law makes no special arrangements for co-habiting couples. There is no such thing as a “common law marriage”. Your financial arrangements will be resolved in accordance with how you own your various assets and the courts have no power to transfer an asset from one party to another in the absence of the court finding that that property is held on trust (e.g. if the property is bought in one name, but both parties contributed equally to its acquisition).
Child support payments are still payable whether the parties are married or not.
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I’m in a civil partnership which is breaking up
Parties who have gone through a civil partnership ceremony can dissolve that partnership by going through a procedure identical to a divorce. The financial consequences of the breakdown of a civil partnership are also similar to a divorce and the same considerations apply.
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We can’t agree with whom the children should live
The courts encourage parties to try and resolve such a dispute without going to court - e.g. by using mediation services and the like. However, if it is not possible to resolve the matter this way, then the court will decide with whom the children should live and how often they will see the other party. The court will be assisted in making this decision by a report from an independent expert (a CAFCASS officer). The court’s decision will be based solely on what is in the best interests of the children and will be strongly influenced by the need to preserve stability in the children’s lives i.e. the existing principal carer of the children is likely to remain so after the divorce unless there are concerns about the quality of that care.
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I’m not married to the father of my children – what rights does he have?
The child’s father will not have “parental responsibility” unless the child was born after 1st Dec 2003 and he is registered as the child’s father or he has acquired “parental responsibility” by a court order, entering into a parental responsibility agreement. Parental responsibility means the bundles of rights, powers and obligations, such as permission for an operation, choice of schools etc which are part and parcel of being a parent.
A mother always has parental responsibility. A father without parental responsibility has to obtain permission of the court before he can challenge the mother’s decision upon these issues.
Where the parents are married, both parents have parental responsibility.
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