Frequently Asked Questions
The divorce procedure nowadays is not complicated and it is not usually necessary for any Court hearing to take place in relation to the divorce unless the case is contested which very rarely happens. If the two sides agree that the marriage is at an end, the process whereby the marriage is dissolved is relatively simple. Most questions that we are commonly asked in relation to these issues boils down to questions of how long the case will take, questions of costs, and the various steps that require to be taken to deal with matters. Here is a brief outline of the answers given in relation to these questions, and answers to other associated matters.
- What are the grounds for Divorce and when can proceedings start?
- What if I move out of the house before the case is completed?
- If I am to blame for the breakdown can I make my spouse divorce me?
- Will I have to attend Court?
- Why must I reveal financial assets which my spouse will not be claiming anyway?
- How much does it cost and who pays the costs in the end?
- What happens if we attempt a reconciliation and this does not work?
- If I have made a Will, which includes my spouse, should I change it?
What are the grounds for Divorce and when can proceedings start?
The applicant (called the Petitioner) must prove that the marriage has irretrievably broken down by establishing that the Respondent has either committed adultery, behaved unreasonably, deserted for two years, separated for two years and given written consent, or simply separated for five years.
Anyone who has been married for over a year can start a divorce subject to there being adequate grounds for starting a case. Either the applicant or the respondent must also have been domiciled in England & Wales or been habitually resident here for at least the previous twelve months. If the marriage has not lasted twelve months, a petition for Judicial Separation can be presented first, followed by a divorce after the twelve months have expired. If the case is not defended it normally takes three to four months to reach final Decree Absolute.
What if I move out of the house before the case is completed?
The Courts do not now normally take into account the actions of the parties in deciding the legal issues between them. A spouse who left the former matrimonial home was formerly treated less favourably. This is not now the case. Leaving the house however can make it difficult to obtain personal effects and moveable property at a later date or to keep an eye on the condition and upkeep of the house.
If I am to blame for the breakdown can I make my spouse divorce me?
No. The other party can be encouraged to take proceedings and may indeed be anxious and ready to do so. They cannot be compelled to do so and even if they do start the case, they control the pace and the timetable. There is nothing you can do to speed up a case which has ground to a halt short of filing a separate petition for divorce yourself if you have grounds for this.
Will I have to attend Court?
If the divorce is uncontested, no. If financial claims or issues relating to children cannot be resolved by agreement, it will be necessary to attend a hearing to deal with these matters. Family hearings are conducted in private, and are relatively informal, with no members of the public allowed in the courtroom, and no formal Court robes worn.
Why must I reveal financial assets which my spouse will not be claiming anyway?
When financial issues are being dealt with - whether formally before a Court or less formally in negotiations between the parties - there is a strict duty of full and frank disclosure of financial information. This means that all financial details must be revealed, even those which are unlikely to form part of the final settlement. If any information is withheld, it can lead to a settlement being reopened later and possibly revised, if it is subsequently brought to light. It can also lead to additional costs being incurred which may be payable by the party who sought to withhold information.
How much does it cost and who pays the costs in the end?
For the divorce itself the costs are currently £550 exclusive of VAT and Court fees. For children cases and financial proceedings the amount of costs will depend upon the extent to which these issues are contested or in themselves complex. In the divorce the costs are commonly paid by the Respondent if the grounds for divorce involve adultery or unreasonable behaviour and the action is not contested. If separation grounds are used, it is common for the costs to be shared equally. If financial proceedings are fully contested it is not possible to generalise about who will pay the costs. As a broad rule however, if one party has conducted the case unreasonably or has failed to negotiate properly, it is more likely at the end of the day that this party will be required to meet the costs of the other side. Each case however stands upon its own merits and the view taken by the individual Judge.
What happens if we attempt a reconciliation and this does not work?
It often happens that after grounds for divorce have come into effect, such as actions which amount to unreasonable behaviour or adultery has taken place, that the couple involved agree to try again for the sake of their marriage and the family. If this occurs the law does not penalise for a reconciliation attempt which ultimately is unsuccessful. If the couple reunite for a period of up to six months, Either in one six month period or a series of periods which total less than six months in all, this does not of itself prevent the original grounds for divorce being revived and utilised in in subsequent divorce proceedings if the reconciliation attempt is unsuccessful. This also applies if the couple have simply separated and here again if the period of reconciliation is less than six months and they split up again, that is not in itself break the continuity of the two year, or five year separation period for a subsequent divorce. There still must be a two or five year separation in all to justify a divorce, not counting periods of time when the parties have been attempting a reconciliation.
If I have made a Will, which includes my spouse, should I change it?
Yes. During the course of a divorce, and until there is a final Decree Absolute, the other party will either be your next of kin if you have not made a Will, or will enjoy the benefit of the provision of the Will in their favour if you have made one. It is important therefore that you consider changing the Will to provide for other beneficiaries such as members of your own immediate family or your children if you have them, rather than your spouse. Once there is a Decree Absolute, unless the Will specifically directs to the contrary, any provision for a former spouse or appointment of that spouse as Executor is treated as though the spouse had died at the date of the Decree Absolute.
You should therefore consider not only making an immediate change to the Will, but also consider what you wish your will to contain as it will stand after the Decree Absolute. You should also consider changing any nominations to pension schemes or insurance policies or benefits for your spouse, and consider the question of ownership of properties including the family home. If the family home is held jointly, it may be necessary to 'sever' the joint tenancy if the property is held as joint tenants, which is the case in the vast majority of joint ownership of property by married couples.
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