Divorce FAQ

If you have landed on this page then you or someone you care for is probably going through a divorce, or about to start the process. It’s a very upsetting phase for most people and has been ranked by health professionals as one of the most distressing events in life. Chances are you have lots of questions. We have compiled below some of the questions we get asked most often by clients:

Q. Does it matter who starts the divorce petition?

A. Yes – the person who starts the process has a little more control on how quickly the divorce proceeds through the courts, but on the flip side they also will be the person who has the pay the court fee to get it started

Q. How long do we have to be separated before we can start a divorce?

A. In most cases – not long at all! If you are proceeding with ‘unreasonable behaviour’ then you can start right away. If you are proceeding down the 2 year route you don’t necessarily need to have lived at separate addresses for the past 2 years, simply that common joint life ceased at least 2 years ago.

Q. Can I change the locks if we separate?

A. Generally – No! There needs to be a really good reason like domestic violence before you can do that and even then you will almost always need to apply to a court for permission first. Contact us if this is a real concern and we can help.

Q. Who pays the divorce court fees?

A. The Petitioner pays – that the person who starts the divorce. Sometimes though some or even all of the costs can be claimed back from the Respondent. Also if you are on a very low income or benefits, you can apply for an exemption from the court fees

Q. Must I have a lawyer to get a divorce?

A. No – there is rarely a time in any legal matter where you must have a lawyer! The question you really need to ask yourself is ‘would I be better off using a lawyer’? The answer to that of course depends very much on you and your personal circumstances. It’s a bit like asking ‘do I need a mechanic to change the oil filter on my car’? Some people will say ‘heck no!’

Q. Can we sort out the financial aspects of our separation without a divorce?

A. No! To have a valid and enforceable agreement you must either divorce or get a ‘legal separation’.

Q. My partner & I have sorted out the finances after divorce between us – can we draw up an agreement together and get it signed and witnessed?

A. No! If the agreement has not been approved by a Court; it’s not worth the paper it’s written on. No matter who witnesses it! To have a valid & enforceable agreement you must have what is called a ‘consent order’.

Q. We got married abroad – do we need to get divorced in England?

A. This is a little bit more complicated. But the short answer is – yes – if England or Wales is where you generally live then you will usually need to formalise a divorce here. It’s worth calling us to chat about this because it can sometimes get a little complicated.

Q. We already got divorced abroad – but what do we do about the division of our finances in England or Wales?

A. You apply for that through the courts here in England & Wales. The actual procedure is quite detailed because you need to first apply for permission to do this after an oversea divorce. But if the bulk of your assets are in England & Wales then you will need to go down this route. If you are fortunate enough to have agreed exactly how you want to divide things up then we can help you to formalise that by way of an enforceable agreement called a ‘consent order’.

Q. Can I move out of the matrimonial home before the divorce is finalised?

A. Yes – you can move out anytime you like. But do bear in mind that once you do move out it can have an impact on any future division of the assets the court may Order; because of many reasons, and one being that by moving out you clearly are indicating that you don’t need to stay in that property! So it’s best that you get some professional personalised advice on this before you take the leap into the unknown. Call us to discuss. Also bear in mind that leaving is always much easier than getting back in. So once you are out, there is a chance your spouse can keep you out, even if you regret your decision to leave.

Q. Can I stop contributing to the household costs as soon as I decide to divorce?

A. Generally the answer to this will be a No! But it all depends on your personal circumstances so if this is an issue you are better off getting some advice tailored to your specific needs. You can’t just stop paying things like the mortgage just because you have decided to divorce your partner. The mortgage lender still wants their money and if you try to intentionally create a situation where your spouse is being made homeless you could end up at the unpleasant end of a nasty court Order. So tread this issue very carefully and call us to discuss your specific circumstances.

Q. My partner doesn’t want a divorce but I do – what can we do?

A. In England & Wales it is almost impossible for one spouse to be able to stop the other from getting a divorce, even if they feel very strongly about it. The courts will generally not refuse to divorce you, so long as at least one of you wants the divorce. You still have to prove that the marriage has irretrievably broken down though – but that’s another matter.

Q. Do I need my spouses agreement to get a divorce?

A. In most cases – No! Only if you are going down the ‘two years separation with consent’ route will you need to have their written consent. This is often referred to as a ‘No Fault’ divorce.  All other types of divorce do give your spouse an opportunity to agree or dispute the divorce and your spouse is required to provide their signature indicating their position, but if they refuse to sign, there are ways around that.

Q. Can I get a divorce without my spouse knowing?

A. It’s a strict requirement that your spouse must be served with the divorce petition. This applies even if they live abroad.

Q. I haven’t heard from my spouse for years – I don’t even know where they live – can I get a divorce?

A. You can get a divorce yes – but first off we need to trace your partner. Remember they always have to be served with the divorce petition. We have ways of tracing people. If we still can’t find them despite our best efforts then we need to satisfy a Judge that we have done everything possible and ask the court to permit the divorce to go ahead despite not finding your spouse. In a situation like this you will most likely need a solicitor to help you unless you really know what you are doing. Call us to discuss.

Q. I have not heard from my spouse for years – is it possible that we are divorced and I don’t know about it?

A. Anything is possible – but you will need to apply to the Court to search the divorce records and find out if that happened. There is a form to complete and fee to pay for this. The fee goes up depending on the number of years worth of records you need to search.

Q. What’s the difference between a cheap online divorce company and using a solicitor?

A. Well – you tell us ‘what’s the difference between riding a bicycle or taking a cab?’ Of course price is one difference – but solicitors don’t just charge more because we are greedy! We charge more because with us every surrounding possibility and future eventuality is dealt with and you walk away worry free. Everything is done by a specialist family law solicitor and, you have the assurance that they are SRA Regulated, Law Society Registered and they hold Professional Indemnity Insurance which means that if anything does do wrong – you have a fall back option. With the bicycle you go slower, get rained on, arrive out of breath and, if you fall off and scratch yourself, it’s your problem! But we are not going to knock bicycles too much – after all riding can make you very healthy and you learn a lot too. So who knows – once you ride the divorce bicycle route you might end up setting up your very own online divorce website!

Q. I need a divorce quick – what is the fastest route?

A. There isn’t one. All divorces take a minimum period. That is generally around 5-6 months. To go any faster you need to have a very good reason. The fastest divorce we ever did took 72 hours. But that was a very special reason, for a very special client who had less than a week to live and, wanted to marry his new partner before his death. Yeah – we know what you are thinking – wow! That’s how special the reason needs to be to get it pushed along and, he also needed the support of the wife he was divorcing!

Q. Can we change our minds if we decide not to go through with the divorce?

A. Sure you can. The courts are not going to force you to divorce if you both decide to stay together. You would be surprised by how often this actually happens. If the divorce has not yet been finalised you would generally simply cease proceeding with it and perhaps drop a letter to the court to let them know what’s happening. You can’t technically ‘withdraw’ a divorce, but you certainly can abandon one. However if your decree nisi has been pronounced, you might need to call us for a chat. That could potentially impact inheritance after you die so you might need a solicitor to help tidy that up for you.

Q. How quickly after divorce can I remarry?

A. You can remarry as soon as your decree absolute of divorce is issued. The very same day if you want!

Q. How do I prove my partners adultery?

A. Well – there are many ways of doing this. And you can end up footing a big legal bill for your efforts too!  But we may also be able to advise a less contentious way forward which gets you what you want – a divorce – and saves you a lot of aggravation, arguments, stress and of course money. Call us to discuss if this is your problem.

Q. I want to divorce my partner because of ‘unreasonable behaviour’ – but what’s unreasonable?

A. Fortunately for you the law defines unreasonable as anything that you personally find ‘unreasonable’! It’s what we call a subjective test. So if you think it’s unreasonable that your partner refuses to come skydiving with you – then yes that could very well be ‘unreasonable’ enough for a divorce. Although if you’re wondering – we wouldn’t come skydiving with you either! You would need to show at least a few examples of unreasonableness to get this type of divorce – but it’s usually not too difficult to convince a Judge. Just keep the unreasonable reasons ‘reasonable’!

Q. Only I live in England or Wales – my spouse lives abroad – can I still get a divorce here?

A. Yes – as long as you live in England or Wales you can petition for your divorce here. However your spouse still needs to be served with the petition.

Q. We are a same sex couple – is the divorce law different for us?

A. Fortunately – no – not any longer! The procedure is now the same and so are your rights and entitlements as a heterosexual couple.

Q. My partner is terrible – do you think I should get a divorce?

A. As silly as this question may sound you would be surprised how often we get asked this. But the answer is always the same. It’s your life and, it’s your marriage. More importantly, it’s your decision. We can’t advise you whether you should or should not divorce. It would be very unprofessional of us to interfere in that way. But once you do make up your mind, we certainly can advise you on the next step. But we are not just here for the nasty disagreements in life – we can also help with a referral to mediation and broker negotiations between you and your spouse which can result in a better understanding between you both and help save the marriage. Call us for a chat if this is what you need.

Q. I am thinking about divorce but have not really made up my mind – what can you do for me?

A. To start with we can advise you fully of the consequences if you do decide to divorce. This includes the financial consequences, how you can expect the matrimonial assets to be split and, the impact on your children. We may be able to write to your spouse and instigate some rapport and encourage them to attend mediation. Sometimes it just takes a little reality check for couples to realise how much they still love each other and, how they can work to save their marriage. Not everything we do is war and hate. Often times we able to get couples who have grown apart to reintegrate, talk through their problems and work toward a peaceful resolution. We will always try this route first – before going down the route of litigation.

Q. We are going through mediation – what can you do for me?

A. We act as a legal adviser in mediation. We remain in the background. You attend the mediation meetings and bring back the information and proposals to us and we advise you on what’s best, what’s realistic and how you ought to negotiate. We give you options that you can propose at your next mediation meeting and we can help put all the figures together and work out complex financial implications of divorce and what’s whose! Then, once you reach an agreement together through mediation, you will be referred back to us and we draw it up into a legal and enforceable agreement called a ‘consent order’. We then get that approved by a Judge and then (and only then), it’s valid.

 

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