DIVORCE BASICS AND PROCEDURE
Can I get a divorce?
Under the law of England and Wales, you can get a divorce if the following applies to you:
- You have been married for over a year;
- Your relationship has broken down permanently and irreversibly;
- Your marriage is legally recognised in the UK;
- As a couple, you have your permanent home in the UK or at least one of the couple has their habitual residence in the UK.
Apart from these requirements, that one of the grounds for divorce is satisfied. This means you need to be able to show what your reasons for wanting a divorce is.
Our specialist divorce lawyers will be happy to have an initial discussion with you and help you understand whether your personal circumstances are such that you can seek a divorce or perhaps some other form of separation is required.
Is my marriage legally recognised in the UK?
As set out above, one of the conditions of obtaining a divorce in the UK is for your marriage to be legally recognised. Surprisingly, there is a considerable amount of couples that live in what they consider to be a marriage, but they do not benefit from legal recognition of their marriage under the UK law.
For a marriage to be recognised in the UK it needs to be legally recognised in the country where the marriage took place.
If you married in the UK then the marriage needs to be registered at the council (civil registration). In case of religious marriage, it is only recognised if specific requirements are met:
- In case of marriage at Church of England, this needs to be carried out by a member of clergy, who registers the marriage. Furthermore, there is a requirement that two witnesses are present and the ceremony must otherwise comply with the rules of the Church of England;
- Jewish, as well as Quaker marriages are valid and recognised so long as they are carried out according to the religious rules and the official performing the ceremony will register the marriage.
- All other religious marriages, including Muslim, Hindu, Sikh etc, must take place in a registered building. There is a further requirement of having at least two witnesses, together with either a registrar or an authorised person (who can be a religious figure) present. Both parties will need to make declarations in respect of their marriage.
In all the circumstance there will need to be a marriage certificate issues. If your marriage does not satisfy the above requirements, then it will not be considered a valid marriage and you will not be able to get a divorce. However, in some limited circumstances your marriage might be recognised to a limited degree, i.e a void marriage rather than a non-marriage, which can significantly change your position in law. If you are coming out of a marriage that was only carried out under religious rules, get in touch with our specialist divorce lawyers who will be help you understand whether your marriage is recognised under the UK law and what your position at law can be.
I was married abroad, can I get a divorce in the UK?
Surprisingly, one of the most common misconceptions people have about a divorce is that if the marriage was concluded abroad, they need to return to that country to get a divorce. Often enough, a client will tell us they want to get a divorce, but cannot do it now, because they don’t have the time to travel abroad and deal with the formalities.
There is absolutely nothing preventing you from getting a divorce in the UK, if the requirements that we mentioned above in respect of a divorce are met. One of the most relevant requirements in situations with an overseas marriage is the one in respect of the residence of the spouses. Therefore, before embarking on a divorce in the UK, you will need to make sure that either both of you and at least one of you is considered to have residence in the UK.
If you are unsure in respect of this requirement, do not hesitate to get in touch with our lawyers. Our friendly team of divorce lawyers will be happy to discuss your matter and provide you with some initial advice.
What are the legal grounds for divorce?
There is one legal ground for divorce in English law, that of ‘irreconcilable differences’ due to one of the following reasons:
- Unreasonable behaviour
- Separation of more than two years – you can apply for divorce and your spouse must agree
- Separation of more than five years – you can apply for divorce and your spouse does not need to agree
How to get a divorce?
To commence divorce proceedings, you must have been married for at least 12-months.
Four main steps will need to be followed when filing for divorce:
- File a petition with the court, which states that you wish to divorce, and the reason why. Once this is served on your spouse, they will then complete and return the ‘Acknowledgment of Service’ document, which confirms they have received the petition. RVS Solicitors will provide you with advice and a complete understanding of the process in a caring and supportive manner, handle the process of filing the petition for divorce for you, and answer any questions you have.
- If the divorce is not contested, the court will issue a Decree Nisi, if they are satisfied with all of the information provided to them, the agreements made, and that the interests of the children involved are fully taken into consideration.
- A Decree Absolute can be applied for after 43 days (but within 12 months) and will be granted unless there are any reasons not to (such as not meeting the legal time limits).
What if my spouse does not want a divorce?
Whether you can proceed with a divorce in absence of an agreement from your partner or not will depend on your personal circumstances and the grounds of the divorce you are relying upon.
For instance, if the grounds for the divorce are based on 5 year separation or unreasonable behaviour, to proceed with a divorce, you will simply need to prove that you have served the divorce petition and the grounds on the other party. This isn’t to say that the divorce will proceed as easily as it would in case of an agreed divorce. A contested divorce will always be a lot more complicated and will take a lot more time.
If the grounds you are basing your divorce are other than above, such as 2 years separation, for instance, then things will turn a lot more complicated and you might not be able to get a divorce on these grounds. In such cases, considering amending the grounds might be the best approach.
As the process of divorcing is rarely as simple as it seems at the first glance, we always recommend that you get a legal advice before starting the process. Our divorce solicitors will be able to advise you on the best grounds to chose to minimise the chances of facing difficulties in securing a divorce. Moreover, our experience solicitors might be able to negotiate with your partner and get them to agree on a divorce. We can never overstate the importance of having a third party rationally and delicately laying out the reasons for the failure of the marriage and how each party might benefit from putting a formal end to it.
Therefore, if you find yourself in a situation where your partner is refusing to agree to a divorce or you simply don’t know how to approach them for it, get in touch on 020 3372 5125. We will also be able to help you if you have started the petition and now are facing difficulties.
I think our marriage is not working, should I get a divorce?
Decision to go through a divorce, is ultimately a very personal one and it might not be suitable for everyone. Whether you are not entirely certain that you have reached the end of your marriage or you have other considerations that keep you from taking the final step and ending the marriage, you can be reassured that the divorce is not the only solution.
If divorce is not what you are looking for, but you do not wish to continue the relationship as it is, you have the option of separating. After a decision to separate has been made, it is advisable that you put arrangements in place for your children and finances, much in the same way as you would in case of a divorce. It is always better to have a clarity on how you intend to proceed in the future. Murky, unclear relationships tend to fester and create conflict in the future.
Contact our team of divorce specialist lawyers for a tailored advice in respect of separation.
Civil Partnership divorce
Divorce is a term associated with ending a marriage. If you are in Civil Partnership, instead of marriage, you might be unsure if you can get a divorce. In reality, the legal term for ending a marriage is dissolution of marriage. For Civil Partnerships, much like marriages, you may apply to have the partnership dissolved.
The grounds for dissolving a Civil Partnership are largely the same as the ones for marriage:
- Unreasonable behaviour (in the case of Civil Partnership, sexual unfaithfulness is included under this ground and not separate as in case of marriage/adultery);
- Separation for 2 years;
- Separation for 5 years.
Much like with marriage, you need to work out with your spouse, arrangements and maintenance for the children, and the division of matrimonial money and property.
Is there any difference in legal aspects of divorce and separation for same-sex couples?
There is absolutely no legal difference in how divorce or separation is handed under the law in respect of the same-sex couples. The requirements, the grounds and the criteria for recognising a union as marriage are exactly the same.
However, there might be some differences in practical approach of how the child arrangements or the financial settlements are dealt with. Therefore, it normally would be a good idea to ensure that you are getting advice from someone who has previously dealt with same-sex divorces and family matters.
Do I need to have an arrangement for our children before we divorce?
Divorce is specifically the process of ending your marriage. You are not required by law to put in place arrangements for your children to applying for a divorce. However, in some cases it might be strategically accurate to negotiate and put the arrangements in place before the divorce is finalised. For this reason, you should always consult with a lawyer specialising in divorce and child law, prior to putting your divorce in motion.
To find out more on how we can assist in respect of child arrangements, visit our child arrangements page or contact our child arrangement lawyers on 020 3372 5125.
Do we need to decide upon how our assets are split before divorcing?
There is no requirement for a divorcing couple to put forward an agreement in respect of their finances prior to applying or getting a divorce. Once again, divorce is specifically meant to end the marriage itself. All the other aspects that have resulted from the marriage are separate matters.
While you can get a divorce without deciding on how your assets will be split, it is never a good idea to go into a divorce blindly. All the best divorce solicitors will advise that you should seek at least some initial advice in respect of your assets, before starting the divorce procedure.
Financial settlement after end of marriage is an extremely complex area and you should ensure that you have the best possible legal advice in respect of it. Our dedicated Financial Settlements page can offer you further information on this matter.
If you would like advice in respect of your financial position once your marriage ends, contact our divorce lawyers at 020 3372 5125.
What if there is domestic violence involved?
If you or your children are a victims of a domestic violence please ensure that you are in a safe situation first and then contact our team. Our lawyers have extensive experience in protecting vulnerable clients.
For more information about domestic violence please see our dedicated page here.
We also understand that unsubstantiated domestic violence accusations can be unfairly used by one party in divorce proceedings, in an attempt to gain an advantage. Our team of family solicitors is very well prepared to deal with such matters. If you are facing domestic abuse accusations, give our team a call 020 3372 5125.
What if my spouse doesn’t have mental capacity?
There are situations where due to some health or other personal circumstance your spouse might not have mental capacity to carry out legal acts. We are often asked if this means that the other party is stuck in the marriage. This is not the case at all. You will still be able to obtain a divorce, the only difference will be that your spouse will need to be represented by a person of trust. If such a person is not available, an application to the court can be made to appoint one.
Do I need to go through mediation?
You don’t have to go through mediation but in many cases, mediation can help you reach an agreement and therefore cut the timeline and the cost of a divorce. Mediation will allow you to go through all the issues surrounding the divorce, such as children, reasons for divorce, family assets etc and come up with an agreement. This will be done with the aid of the mediator, who is an impartial guide and is trained to facilitate an acceptable solution for both parties. If an agreement is reached then the mediator will draft a memorandum of understanding which can later be used for more formal arrangements, such as getting a Consent Order in place to ensure the arrangement is enforceable in the future.
A good solicitor will always advise you to attempt mediation, where it is appropriate.
How Long does a Divorce take?
There is no fixed time frame for divorce proceedings to complete, however, in most cases, a decree absolute would be issued around 20 weeks after the proceedings have started, unless there are reasons impending the procedures from going ahead. For instance, if the couple cannot agree in respect of child arrangements or the financial arrangements, anyone of the spouses may oppose to issuing of the Decree Absolute until such time as these aspects have been concluded.
If your matter requires mediation and/or court proceedings, we will do our best to make the process as quick as possible. We understand that every additional week of the process can take an emotional toll. If the respondent’s solicitor is not responding promptly or is prone to engaging in unnecessary correspondence, we will do our best to push them to reduce the overall timeframe for divorce, thereby allowing you to move on with your life sooner.
A quickie Divorce. Do I need a solicitor to get a divorce?
Although there are several DIY divorce companies, it is always advisable to instruct an experienced family law solicitor if you are in the process of ending your marriage. Most people in a divorce situation are incredibly vulnerable and prone to making decisions that are not in their long-term best interests. These DIY services do not account for specificities or particulars of your circumstances, which can lead to considerable issues arising in the future. Such services should be avoided where there are children of the family and assets presents.
Our family law team can assist you in assessing your situation and ensuring you take out of the marriage what you need to move on to a secure future. The same applies to making arrangements for your children; by working with us, you can be confident that the provisions you make now can adapt to when circumstances change, e.g. if you and/or your ex-spouse begin a new relationship.
I want to avoid conflict. Will using a solicitor make things worse?
One of the biggest concerns of those starting a divorce is that this process will turn into an acerbic, interminable conflict. Divorce is a time of heightened emotions, it is a major event, end of an era for many and that means that staying calm and collected is not always possible. With emotions already flying high, any mention of getting legal representation may seem like adding gas on fire. For this reason, many avoid getting the help they need, until it is too late.
Contrary to common wisdom, getting a divorce lawyer on board when you are just contemplating about starting the divorce proceedings might be just about the wisest thing you can do to avoid inflaming the spirits.
Naturally, not all divorce lawyers are the same and you should make sure that you are engaging with the right one. Family law is an extremely delicate area of law. Many practitioners fail to account for the specificities of family law and conduct divorces as any other litigation. This is where conflict comes from. In the UK, the courts expect the parties to work in a collaborative manner to resolve family issues. At RVS Solicitors, we work much more collaboratively with our clients than a traditional law firm and seek a non-confrontational approach to resolving disputes wherever possible.
By engaging us from the onset you can rest assured that wherever possible, we will ensure that the conflict is not inflated. Moreover, by corresponding with the other side in a professional and cooperative manner, we can ensure that whatever conflict there might have been between you and your soon to be ex-partner, is resolved in a much quicker and calmer manner. A good solicitor can act as a buffer of sorts between you and your partner, extinguishing the flames.
However, if the negotiations fail, you can trust our lawyers to fight hard and to push the boundaries where necessary, to get the results you want. By instructing us, you can be assured that we take a considerable interest in the needs of you and your family and work hard to deliver results.
We value the trusted relationship we develop with our clients, and in turn, they feel supported and confident that their divorce is in the best hands. We will take care of hall aspects of your divorce, including arrangements for children and financial settlements, keeping you informed throughout the process.
How much does a divorce cost?
This is one of the main questions we hear from the clients. Many have heard horror stories of divorces costing them disproportionate amounts and are hesitant to engage in one. While these experiences do happen, with the aid of experienced divorce lawyer, you can keep the costs manageable.
There is no exact answer to this. All the divorces are different and how much it will cost you depends on your personal circumstances and what you wish to include under this question.
There is a court fee of £550 that needs to be paid at the time of petition being submitted. Once the Decree Absolute is issued, there will be a further fee. In respect of the solicitor’s fees, these will depend on whether there is an agreement between the parties to terminate the marriage or if there is a risk of being a contested divorce. The only way to get an accurate understanding of the fees would be to have your matter assessed by the solicitors.
If the question is viewed in a broader sense, to include the legal costs for getting all the aspects related to separate, such as children arrangements and financial settlements sorted, then undoubtedly the costs will be much higher, but again will depend on your specific circumstances.
What you want to look for in the work of your divorce solicitor is whether they are engaging all reasonable endeavours to resolve your matter in a quick and efficient manner. Non-conflictual approach that we practice ensures that costs are kept at the possible minimum and that you are not facing unnecessary legal costs that will fail to add any value to your situation.
Who pays for a Divorce?
In family matters it is largely accepted that each party supports their own costs. Unlike other areas of law, the default position is that each party will pay their own share. However, in certain circumstances you can succeed in award of costs against your ex-partner.
The best divorce lawyers will always attempt to reach an agreement in respect of costs at the outset. This way, you can avoid any conflict later. If you wish for your costs to be paid by the other party or if you simply lack the means for covering your divorce costs, please speak to one of our Divorce team for further guidance.
DIVORCE AND CHILDREN
Do we have to go to court for an arrangement about our children?
Clients often assume that the only way to have a child arrangement in place is to go to court. This is not the case. In fact, the legal system and the Courts encourage the parents to reach an arrangement about parenting and their children in an amicable manner.
As parents, you are the best placed to come up with an arrangement that will work for you, as parents and for your children. However, it is also important to remember that there are a lot of variables in life, especially when passage of time is also factored in. For this reason, we recommend that you seek legal advice in respect of any child arrangement, prior to formalising it.
Our experience lawyers will be able to guide you in finding a solution that best suits both of the parents and the children. A solution that will not only work for the moment, but for years to come, minimising the possibility of conflict and the need to return to negotiating table, or worse to the court in the future. We can also ensure that your agreed arrangements have the legal form necessary for enforcement, should things come to that.
What is a child arrangement?
Child arrangement is the agreement that you and your ex-partner reach in respect of how you will be dealing with issues related to your children. As parents, you both have certain rights and responsibilities. These relate to everyday aspects of your child’s lives, such as where will they live, what type of education they will get, what schools they will attend, what religion they will be raised in, what kind of medical treatments they will receive, where they will spend their holidays, who can have contact with them etc.
When you are living as a family unit, these things are normally easier to regulate. It is not to say that there can be no conflict in respect of these aspects when the family lives as a unit, but normally such conflict is easier to resolve. When the marriage or relationship between parents ends, it makes a lot more difficult to make these decisions on daily basis, without having a plan in place.
Child arrangement is that framework that allows you to have a plan on how you will be approaching such decision making once the family has divided and starts living separate lives. Considering the amount of decisions that a parent makes for their child, it’s easy to see how not having a well-thought out arrangement can lead to nightmarish scenarios where you live in a constant conflict with your ex. To avoid this, ensure to get the best legal advice from experienced family lawyers.
I want to have the custody of my children, what should I do?
Under the UK law both parents have parental responsibility in equal measure. The divorce does not change this. The parents will continue to have the same rights and responsibilities in respect of their children as they had before marriage ended. The only difference will be that they will not be living in the same home and as such, decisions in respect of where the children will live will need to be made. This is known as Residence Order.
There is no need for the court to make this decision for you. The parents can agree in respect of what will be the main residence of the child and which parent they will be residing with. The other parent will have contact rights with the child, including the child staying overnight with them. It is always better if you reach an agreement with your ex-partner and our team of experienced family and divorce lawyers can help.
Naturally, the extent and nature of such arrangements will be different from case to case. Only in very rare cases a parent will be prevented from having contact with their child and the child’s sole care will be entrusted to the other parent. In most cases, both parents will retain their parental responsibility and continue enjoying contact with the child.
In most cases involving children, you will need to attend mediation prior to starting any proceedings at court. You should utilise this to its maximum as this can be a good way to resolve things without much expenditure, both in financial and emotional sense.
How will the Courts decide on child arrangements?
It’s not ideal to leave such matters to the Courts and we will do our best to ensure you reach an agreement with your ex-partner in respect of your children. However, sometimes this cannot be avoided and you will need to go to court in respect of the children’s matters. The best family lawyers will always remind you that these proceedings are about what’s the best for the children. That is exactly how we work, putting the children’s best interest above all else.
The Courts will also have similar approach. They will, of course listen to the parties, but they may also seek to have an independent assessment of what is the best arrangement for the child. For these purposes the court will order Cafcass (Children and Family Court Advisory Support Service) to prepare a report in respect of the child’s welfare. More information about Cafcass can be found here.
Upon hearing from the parties and seeing the Cafcass report, the Court will make a decision in respect of living arrangements for the child, as well as contact for the non-resident parent.
Will the mother always be the one granted residence with the child?
The UK law recognises both parents as equal participants in the children’s upbringing. There is no law that states that the mother will be given preference when deciding who the child should live with. Having said that, in most cases, the mothers indeed are the ones to be named as resident parents. In most cases, however, this is due to the agreement between the parties that it is better for the child to live with the mother. Each case is different, however. If the parties cannot agree in respect of the living arrangements for the children and they do end up going to the court, they will need to prove why it’s better for the child to live with them.
Unfortunately, there still is a slight bias against fathers when it comes to naming them as resident parents, but it can be overcome with strong representation and a good understanding of father’s rights. Our lawyers have vast experience in representing dads in custody cases. You can read more about it on our dedicated father’s rights page.
Can my spouse refuse me contact with my child?
Many, especially fathers, worry that if they get a divorce, they might not be able to have contact with their children. While it is possible that one of the parents might attempt this, their position in law is not too strong. The parental responsibility and rights are vested in both parents and they are not lost through divorce. If one of the parents attempts to frustrate contact with the other parent, the courts can interfere. Contact can be ordered and enforced. In more extreme cases, where the resident parent repeatedly frustrates contact with the other parent, the courts may order that the children live with the other parent who can commit to ensuring the children have contact with both parents.
Ultimately, what you need to keep in mind is that the UK legal system is set up in a way that is aimed at ensuring the children have contact with both parents. The only situations where the courts will depart from this are when contact with the parent is clearly against the best interest of the child.
Will my parents have the right to see my children?
Another frequent worry during divorce proceedings relates to the grandparents and whether they will have access to the children. In many families grandparents play a big role in the children’s upbringing and there can be a lot of heartbreak for all involved, if the grandparents are suddenly locked out of contact with children.
While there are no automatic rights in law for grandparents, the good news is that a strong child arrangement agreement can cover these issues.
In situations where agreement cannot be reached, the grandparents can apply to the courts for contact orders. As with all the matters concerning the children, in these cases too, the best interest of the children will be paramount. Therefore, if the grandparent can show strong connection with the child and how it will be in the best interest of the child to remain in contact with them, the order will be granted, even if one of the parent’s opposes it. This holds true for any other family member that has a strong connection with the child.
How much maintenance will I need to pay?
The amount you will need to pay to the resident parent for child maintenance will be normally calculated by the CSA (Child Support Agency). They will deal with such matters for all children up to the age of 16 inclusive. In most cases, if you are looking to recover unpaid maintenance or consider that the amounts are need to increase/decrease, you will need to contact CSA, as they have the authority to deal with it.
The only times courts will be involved in Child Maintenance matters is if there are particular expenses that are involved and the parents cannot agree how to cover them (for instance school fees, trips etc) or if the child reaches the age 17 but maintenance issues still persist.
Can I relocate and take my child with me?
Often enough, after the divorce, one of the parents will look to relocate to another area of the country or even overseas. If you intend to relocate after the divorce, then this should be part of the agreement you negotiate with your ex-spouse in respect of child arrangements.
You need to keep in mind that if you are the resident parent, the child’s residence will be the same as yours and it cannot be changed unilaterally, without the consent of the other parent. Unless an agreement can be reached you will not be able to relocate and take your child with you. Alternatively, an application to court may be made, known as specific issues order to allow you to relocate with the child. Such order, however will not be granted unless you can show that the child will benefit from such relocation. Your interests alone will not be sufficient to allow for such relocation. Another significant aspect that you will have to deal with, is how you will ensure that the contact arrangements with the other parent are observed, in case of relocation.
Will I be able to travel abroad with my child?
Both parents normally have the right to travel abroad with the child if it is for a short period, usually under 28 days. If you intend to relocate overseas or simply stay there for a longer period with your child, you will need the other parent’s agreement. If you take your child outside of the UK without such an agreement, it can be viewed as a child abduction and return procedures under Hague convention can be initiated. Read more about child abduction here.
I have been accused of domestic violence, will I lose right to see my child?
Domestic violence allegations are serious and you should seek legal representation to ensure you address them correctly.
In respect of your rights to see your child, domestic violence allegations will not affect those rights, unless the allegations include violence against the children or in their presence. If the courts believe you have behaved in a manner that can be classified as domestic violence involving the children, then depending on the seriousness of the incidents, you might be disallowed direct contact or be allowed only supervised direct contact. In most serious cases, your parental responsibility might be removed.
There are steps that you can take to rehabilitate and resume contact with your child if the above has occurred.
DIVORCE AND FINANCES
What are Financial Settlements?
Marriage is a complex affair, it means merging of two separate lives. With marriage ending, these two lives will need to be separated once more. This includes your finances. During your married lives, your finances had mingled together and created one single pot that sustained your family. The longer the marriage, the more would have come into this pot. Once you have decided to divorce, you will need to address the complex issue of how to divided the family assets. The agreement on how to divide the family assets is known as Financial arrangements or Financial Settlement. We have a comprehensive page on Financial Settlements, if you require more information. Our lawyers have worked on many complex matters and will be able to guide you in the best way possible, ensuring that you do not pay huge legal bills with little real benefit to you.
Do we have to attend Court for the Financial Arrangement?
There is no need to involve the courts in your Financial Arrangements. As with all family related matters, the courts, in fact, encourage amicable solutions for financial matters as well.
At RVS Solicitors we firmly believe that cooperative approach is always better. It will help you come to an arrangement in respect of how to split your assets without spending too much money and effort. Getting into legal battles over family assets will not only prolong the agony of divorce, but can swallow up large amounts of your family finances. Instead, if you take a less confrontational approach, you will be able to spend the finances you worked so hard to earn elsewhere, where they can benefit you more.
Once a satisfactory agreement has been reached, it is always advisable to seek a Court Order, known as Consent Order, that confirms your agreement. This will help you avoid unpleasant surprise in the future and will ensure that you can seek enforcement if the other party decides to go back on the agreement.
In all the cases, we strongly recommend that you get legal advice early on. You should not agree to any arrangements before speaking to a specialist divorce lawyer, as you might be damaging your position and agreeing to an unfair split of your assets.
What happens if we can’t agree a financial arrangement?
If parties fail to agree on how to split their assets, then the court can make a decision in respect of how the family assets should be split.
For the courts to be vested with a power to make a Financial order, one of the spouses needs to make an application to the court in this respect. A divorce petition will not automatically start this process. It is a separate application that needs to be made. Once the application is issued and served, the parties will then exchange their form E’s which detail the assets they hold, whether as part of marital pot of assets or assets they claim as their personal.
It must be said that there are many complexities that revolve around financial proceedings. Often times one or both of the parties will try to hide assets, will dispute that an asset should be part of matrimonial assets to be divided etc. For this reason, strong legal representation is essential.
Once both parties are satisfied that the other side has given full disclosure, the parties can proceed to the final stage: dividing the assets.
As mentioned, financial proceedings are complex and can take a long time and consume a lot of energy and money, with no guaranteed result that you might get what you want. Wherever possible, you should seek to come to an agreement instead.
What is considered matrimonial asset?
Everything that either of the parties to the marriage has earned, will form matrimonial asset. It doesn’t matter that one party might have had a bigger financial contribution than the other in a particular asset, it is still considered a matrimonial asset and as such is a jointly owned asset.
Further to above, any asset that was used during the marriage or had been altered in a way that has increased in value etc, can also be viewed as matrimonial asset. If you are unsure about the status of your assets, speak to our team of divorce lawyers, who will be able to assist you.
How will our assets be split?
The default position at law is that each party will be given 50% share of the matrimonial assets. This is because under the English law system, the couple is considered to have had equal contribution to their finances. It does not matter if one party earned more than the other, as they might have contributed in a different manner. There are, however, situations when the courts will depart from 50/50 split. In doing so the courts will take into account the needs of each party, their earning capacity and other factors.
Who will get the house when we divorce?
Often enough, the matrimonial house is the biggest asset a family has. Naturally, many are worried in respect of how this asset will be divided.
There are number of ways the house will be dealt with and it will depend on your circumstances. For instance, if there are children, then their interest will also need to be taken into account.
The property can be ordered to be sold and the proceeds split between the parties. Conversely, it can also be ordered that one party retains it and pays a lump sum to the other party against their share of the property. In other situations, especially if there are children, the property can remain on both parties names and should it be deemed that it’s in the best interest of the children to continue living in the property, the resident parent will be granted leave to remain in the property until the children attain certain age. There are also issues in respect of mortgage and the rights of lenders to take into account.
In all the cases, involvement of an experienced divorce lawyer is indispensable when dealing with matrimonial assets, in particular, homes.
Is my pension matrimonial asset?
In most cases pensions will be considered to be matrimonial assets. Unless the marriage was a very short one and there was already a considerable pension pot accumulated prior to the marriage, pension will be viewed as a matrimonial asset and will need to be valued and the value taken into account when dividing the assets.
My spouse controls family finance, can I claim maintenance while divorce is pending?
In some cases, there will be one partner who is financially more vulnerable than the other spouse. In certain cases, women in particular, have lesser access to family finances and they find themselves locked out of financial means to support themselves once the divorce proceedings have started.
There are remedies available to you if you find yourself in such a position. You can ask your spouse to pay you interim maintenance, while divorce and financial settlement is pending. Should an agreement not be possible, you have the option of asking the court to make an order in respect of maintenance to be paid while the case is pending.
Will I have to pay maintenance to my spouse after divorce?
Whether you pay maintenance to your ex-spouse or not will depend on your and their circumstances. Normally, maintenance will only be ordered for a limited period in situations where one of the spouses cannot be expected to become self-sufficient immediately as the divorce is concluded. For instance, they have not worked for a significant time and will not be able to get a job immediately or they have some health issues that makes it impossible for them to get back to work.
Can I continue using joint bank accounts and other family assets if we are divorcing?
If the divorce and financial settlement has not finalise them, both parties may continue using their assets, including bank accounts. However, you need to be mindful of the fact that if the operation is considered wasteful or that you have done it with purpose to move assets from matrimonial pot, then you can be ordered to pay them back. An example is, if during divorce proceedings you decide to gift the car you are driving to a friend. Or if for instance, you sell an expensive asset for a lower price without your partner’s agreement. The list can go on. Therefore, it’s always prudent to discuss any transactions with your divorce lawyer, prior to engaging in them.