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What are the grounds for divorce?
The law changed on 6 April 2022. The applicant(s) only needs to make a simple statement to confirm that the marriage has broken down irretrievably. The previous requirement to rely upon on one of five facts in support of a divorce; adultery, unreasonable behaviour, two year separation with consent, five years separation, desertion for a period in excess of two years has been removed.
How long will my divorce take and what is it likely to cost?
A straightforward divorce will take at least six months (26 weeks) to complete because (1) there is a minimum period of 20 weeks between the issue of the Application and when the applicant(s) may apply for a Conditional Order and (2) there is a further minimum period of 6 weeks between the Conditional Order and the applicant(s) being entitled to apply for the Final Order
The proceedings will take longer however if there are any disputes concerning the r finances or there are problems with service.
The estimated cost of a straightforward divorce is between £850 – £1,000 + VAT plus Court Fees of £593. This does not include dealing with the matrimonial finances or any arrangements relating to children.
What rights do Civil Partnerships have?
Civil Partnerships afford couples the same rights as that of a different-sex marriage, for example, tax and pension benefits. If a civil partnership dissolves, partners also have the right to apply for child and/or spousal maintenance, child custody and relationship property rights.
My husband and I are divorcing. The children will be living with me. Will I keep the house?
This will depend on a number of factors. The needs of the children are a priority and this includes their housing needs. If you are not able to adequately re-house the children using the available equity and any mortgage capacity the Court will specify that you should remain in the home if this is financially viable. However, the Court does need to balance the needs of the parties so if there are insufficient assets to compensate your husband for his share the Court can specify that your husband will retain an interest in the house to be realised when the children reach 18 or 21 and finish full-time education for example. This is called a deferred charge.
What is Maintenance?
Maintenance can come in two main forms: child maintenance or spousal maintenance.
Child maintenance serves the purpose of providing sufficient financial costs for the bringing up of your children. It normally involves a regular financial payment to contribute to the child’s general living costs. It is encouraged that families try to make arrangements between themselves before a government scheme, or in some cases, a court order is utilised. Because deciding on an arrangement depends on many variables, we can provide you with advice specific to your circumstance.
Spousal maintenance may need to be considered, where one partner cannot financially support themselves following the divorce. It is very circumstance-dependent and because we understand the desire for a ‘clean break’ we will provide you with advice that is tailored to your needs.
Do I have to pay maintenance?
As a starting point, child maintenance is paid to the parent with the day-to-day care of the children. How much you will have to pay will depend on your earnings.
Spousal maintenance only needs to be paid in circumstances where post-separation one partner cannot financially support themselves. The payment period is normally short but will depend on the circumstances.
I have worked all my life to build up my pension. Can my wife claim any of it?
Pensions are relevant assets and will be taken into account by the Court. However, a pension is a different type of asset and will not be treated the same as available capital. You will be asked to obtain a valuation of the pension. Most commonly this will be the Cash Equivalent Value or CEV. Once the value of the pension is known this can be considered alongside the other assets. The Court will consider the financial resources available to both of you and balance this against your respective needs. If your wife has no pension provision, perhaps because she has stayed at home and looked after the children, then your wife is likely to be awarded part of the pension. This will of course depend on the other assets available.
What sort of pension provision can be made?
The Court can award a pension share where a specified percentage of the pension is transferred from your scheme into a pension in your wife’s name. This might be to another pension provider, an external transfer, or can remain within the same scheme, an internal transfer. Alternatively the Court can make a pension attachment order. This is when the funds remain within your pension but part of the pension (either the lump sum or ongoing payments) is earmarked for your wife. These types of orders are less common and do not achieve a clean break. In practice many couples choose to offset the pension against another asset. A common example is the wife retaining the house in return for the husband preserving his pension. This might be appropriate but regard must be had to the fact that the pension is not readily available capital and that only a percentage can be taken as a lump sum with the rest representing an income stream.
I have been living with my partner for more than two years. We are not married but am I his common law wife?
There is no such thing as a common law wife or husband. Cohabiting partners are not able to make claims against each other in the same way as married couples. If you have pooled your resources to acquire assets then you will have a claim in respect of those assets. However, you will not be able to claim maintenance for yourself or against your partner’s pension if you are not married. If you have children together you may be entitled to maintenance for the children and may be able to apply for other financial provision for them in addition.
I have been living with my partner for a number of years. We are not married. While we were living together my partner purchased a property in his sole name but I have contributed to the mortgage and improvements at the property. We have now separated do I have a claim?
You might have a claim. If the property was purchased in your former partner’s sole name the presumption is that the property is owned entirely by him. The burden is therefore on you to establish an interest in the property. This can be difficult. If the matter went to Court the Court would examine the whole course of dealings between you, including whether you have pooled your resources and shared expenses. Your common intentions would be examined and any discussions between you concerning the ownership of the property considered. The purpose for which the property was purchased is relevant as are any contributions that you have made to the property.
My wife and I have decided that we want a divorce and we now wish to sort out our finances and the arrangements for the children. What options do we have?
You can reach an agreement between yourselves, attend mediation, take part in the collaborative law process or instruct a solicitor to negotiate for you and issue Court proceedings if all else fails. If matters are fairly amicable then one of the first three options may suit you but if you have concerns and need to safeguard your position then you will need to instruct a solicitor straightaway. Even when negotiating your own agreement and attending mediation it is still sensible to seek legal advice to ensure that you understand your rights and the full implications of any agreements and decisions that you take.
What is Parental Responsibility?
Parental responsibility is the right to make key decisions about a child’s welfare such as issues relating to their education, health and day to day care.
Not all parents have parental responsibility for their children. Mothers acquire parental responsibility automatically and parental responsibility is conferred on those who have an order that a child lives with them. Biological fathers who are married to the mother when a child is born also acquire parental responsibility automatically. Unmarried fathers whose names appear on the birth certificate post December 2003 also acquire parental responsibility. If you do not have parental responsibility for your children, you may have to apply to the Court if the mother is not willing to agree a parental responsibility agreement.
I want to move to Spain with the children but my ex-partner will not agree. What can I do?
If you have not been able to reach an agreement with your ex-partner between the two of you, you can try to reach an agreement through mediation or through solicitors negotiations. If it is still not possible for an agreement to be reached you would need to make an application to the Court for a relocation order. You would need to be able to demonstrate to the Court that it would be in the children’s best interests to relocate to Spain and set out all of the details about their lives if you were to move including their schooling, medical care, any support from family or friends that you would have in Spain and the time that they would be able to spend with their father once you had moved.
Do we have to go to Court?
If you are divorcing your divorce petition must be issued in Court. However, it is not necessary for you to attend Court if agreement is reached in relation to the children and finances. Court should be seen as a last resort and other methods of dispute resolution explored first such as mediation, collaborative law process and negotiating through your solicitor. For guidance on the right process for you please click here for the Resolution Website or click here for our leaflet