The most common questions about divorce
Going through the process of divorce is not something that many of us want to repeat. So, it’s a fresh experience for most people and that can mean a lot of unknowns. These common divorce law questions might seem obvious but, because divorce is such unchartered territory, they still need answering.
What’s a “quickie divorce” and how can I get one?
There is no such thing as a “quickie divorce”, despite what the press might want you to believe. Divorce follows a set procedure, so “quickie” instant divorces simply don’t exist. The quickest a divorce can be concluded, from issuing the petition to decree absolute, is 12 – 15 weeks. Much will depend on how soon the parties deal with paperwork and how speedily the court deals with the case. It is rare for the divorce suit to be concluded within 15 weeks. In most cases the divorce procedure takes 5 – 6 months from start to finish. However, it can take longer to sort out financial issues and there may be reasons to delay applying for the decree absolute.
We want to use the same solicitor for our divorce, is that possible?
No. It is not advisable for both parties to. Lawyers are not permitted to give advice to both parties to a divorce at the same time as this gives rise to a serious conflict of interest. Even if you have already agreed all the details it is still recommended that you both take independent legal advice from different lawyers. This will ensure that all issues have been considered and all the steps that need to be taken to ensure your future financial positions and those of your children have been considered.
What is the terminology?
The person who starts the divorce is called the ‘Petitioner’ and the person who is sent the Divorce Petition is called the ‘Respondent’. The only ‘ground’ for divorce is the ‘irretrievable breakdown’ of the marriage, which is proved by citing one of five ‘facts’: adultery, unreasonable behavior, two years separation with consent, two years desertion and five years separation.
When the Respondent has confirmed that he or she has received the Petitioner and that they do not intend to defend the divorce, the Petitioner will apply for the ‘Decree Nisi’, which is when the court checks the petition and confirms that the facts of the divorce have been ‘proved’. If so, the court will fix the date for pronouncement of decree nisi. The Petitioner can apply for decree absolute (the final order) 6 weeks and one day after decree nisi is pronounced.
When does the court get involved?
If the parties agree to the divorce and it is not contested then everything can be dealt with by post. The parties will not be expected to attend court unless there is a dispute. The procedure will be dealt with in one of several administrative centres (the one for Cumbria is in Liverpool). If there is a dispute, the matter will usually be listed for hearing at a court hearing centre convenient to the parties.
What about disputes over finances?
Financial issues are sorted out separately from the divorce. Financial claims arising from a divorce or separation can only be finally resolved and future claims dismissed if there is a court order specifically stating this. If there is no order dismissing the financial claims, it is possible for either party to raise such claims at any time, even many years after the divorce has ended. The only thing which might prevent claims being made is if the person making them has remarried.
Most people manage to sort out their finances between them or with the help of their lawyers. It is always recommended that you take legal advice before agreeing anything. You should also provide full details of your financial positions to each other. The financial elements of a divorce can be some of the most contentious and can take the longest to resolve. So, if you direct your energies at any part of the divorce process, trying to find agreement on severing your financial ties should be it. An experienced family lawyer will be able to explain the different ways you can achieve this such as mediation and collaborative law.
Do you have to get married in England and Wales to get a divorce here?
No, not necessarily. You need a connection with this country to get divorced here – such as being born in England, for example – but there is no requirement for a marriage to have taken place here too. If you have been married abroad and you want to be divorced in this country then you’ll need documents such as your marriage certificate – with an English translation for the UK courts. Foreign nationals who have lived in the UK can also get divorced here, but it is always worth checking whether the divorce will be recognized in the country where the original marriage took place, or where the parties originated from.
How much private information has to be disclosed during a divorce?
Although it can feel uncomfortable, divorce does involve the sharing of a lot of private information. Your pay slips, information about your bank account and income are all included in what you’ll need to disclose. There is a duty on both parties to give full and frank disclosure of their respective financial and other relevant information. Failure to do so at the appropriate time can lead to any agreement reached being set aside by the court at a later date, which can prove extremely costly. An experienced family lawyer will help you to identify what information you have to provide.
What if we have been living apart from a while?
No matter how long you have been living apart, you are still under an obligation to account for what you’ve been spending and earning during that time. Until you have reached agreement on the finances then there isn’t anything that is ‘off the table’. However, the courts do tend to treat different assets in different ways and your family lawyer will be able to advise you on what approach the court is likely to take and what assets are likely to be treated as ‘non-marital’ assets. Although there is no guarantee that they will be ignored by the court, there is a possibility that the court will not include them in the assets to be divided.
How does the court approach the division of assets?
The first stage in deciding how financial claims should be resolved is to identify what the assets are. The assets will often include marital and non-marital assets.
Marital assets are assets which have been acquired in the joint names of the spouses, or which have been acquired during the relationship with money generated by the parties. Non-marital assets are those which were acquired before the relationship or since separation or from monies acquired by one party or the other from gifts or inheritance.
If it is not obvious whether an asset is marital or non-marital, the court may require an investigation to be undertaken, depending on what the judge considers to be proportionate. The court may be required to make findings before undertaking the next stage of the assessment. If it is not possible to make clear findings of fact the court can undertake a broad brush assessment of the position and the judge may, ultimately, decide that it is not appropriate to differentiate between the marital and non-marital assets to achieve a fair outcome.
The final step in the process is for the court to consider how the assets should be shared fairly having regard to the factors contained in section 25 of the Matrimonial Causes Act 1973 and all the circumstances of the case. This means the court is not bound to divide the assets equally or to ignore non-marital assets completely if this would not achieve a fair result.
These are some of the most common questions when it comes to getting divorced in England and Wales – if you have others then feel free to get in touch. We offer an initial no-obligation free meeting with our Mr Hill and if you would like to take advantage of this please call him or his secretary on 01539 723757.