FAQ

Divorce

Can I get a divorce?


As long as you have been married for at least 12 months, and your marriage has broken down irretrievably you will most likely be entitled to apply for a divorce. Our qualified divorce solicitors will always discuss with you the reasons for the separation and whether the facts demonstrate irretrievable breakdown of the marriage. If you do not meet the requirements to pursue a divorce our expert solicitors will explore other options, such as annulment or judicial separation.




Can my spouse defend the divorce?


Yes - but they will only be successful in pursuing a defence if they can show to the court that the marriage has not irretrievably broken down based on the fact you are relying on. From divorce statistics the vast majority of defended divorces are not successful and a divorce is usually granted. Defending a divorce is generally not advised as it is usual that if one spouse feels the marriage has broken down irretrievably a divorce will be inevitable. It will therefore be more important to focus on children and financial matters that may arise. If you are thinking of defending a divorce contact our expert solicitors first to ensure you are pursuing the best course of action.




Does my spouse need to agree to the divorce?


Not necessarily. The only facts that require you to obtain agreement with your spouse is adultery and two years separation. In the remaining facts, for example unreasonable behaviour or five years separation, you do not need your spouse to agree to this but you will need to show the court that your spouse is aware of the petition, or you have tried all possibly methods to make them aware of the divorce petition. We will always discuss with you the best options to deal with your case to ensure it is dealt with swiftly and without delay.




How long will the divorce take?


An uncontested divorce usually takes between 6 to 9 months at a minimum, however it is always advisable to avoid obtaining the final divorce order until financial matters have been agreed and approved by the court which will likely lengthy the time to finalise the divorce.




Do I need to go to court to get a divorce?


Divorce is dealt with by the courts by considering the paperwork and applications. It is very rare that you will need to attend court as this is usually only if there are issues with agreeing who pays the costs of the divorce or if the divorce itself is defended by the respondent.




My spouse has started the divorce process - what do I need to do?


The court will issue the petition and send you a copy along with an Acknowledgement of Service form for you to complete and return. The form is short, and appears straightforward, but if you are unsure of what you are signing and if you object to certain aspects of what is pursued in the petition - for example a costs order - then you should contact our expert divorce solicitors to obtain advice about filling in the form.




We married abroad, can we get a divorce in England?


As long as the ceremony followed the legal process in the country where you married you will be entitled to pursue a divorce in England as long as you meet the jurisdictional requirements of pursuing a divorce. Our experienced divorce lawyers can assess and advise on whether your marriage is considered a "legal" marriage and if you can pursue a divorce in England.




I have a Nikkah/Islamic marriage - is this a legal marriage?


Under English law a specific legal process needs to be followed for a marriage to be considered legal. A Nikkah or Islamic marriage entered into in England and Wales has no legal status under English law unless it is accompanied by a civil marriage either at a registry office or at an approved mosque. There are a handful of mosques that are authorised to register marriages, but the vast majority are not. If your Islamic marriage is not accompanied by a civil registration, you will be considered cohabitees under English law and the rights you will have almost no rights, or extremely limited rights to claim financial relief in the event of a separation. If you had a Nikkah or Islamic marriage abroad and the legal process was followed under that jurisdictions legal system (for example in Saudi Arabia, Malaysia and Pakistan), under English law the Nikkah or Islamic marriage will be considered legal. If your Nikkah or Islamic marriage is not considered a legal marriage under English law you may have other options to pursue financial matters in the event of a separation, especially if you have children together. If you are uncertain whether your Nikkah or Islamic marriage is considered a legal marriage you should call our expert divorce solicitors who can give you free advice about your circumstances and options.





Finances

I pay child maintenance, do I have a right to see my child?


Child maintenance is the legal obligation of a non-resident parent to meet the child's financial needs. The payment of child maintenance does not provide a right for a parent to see a child. A child has a right to know the parents and have a relationship with both parents, however, this can be restricted if there are child protection or welfare concerns. If contact arrangements are being refused by a parent we would recommend you contact our expert children law solicitors to obtain advice on how to proceed with having arrangements put in place.




I am getting divorced. Do I need to get a financial settlement?


If you are married and going through a divorce, it is highly recommended you also obtain a court approved financial settlement, in the form of a consent order to settle the finances between you and your spouse. At first it may appear unnecessary, however, marriage brings with it a lifelong financial tie to your spouse which does not end on divorce and there is no time limit on bringing a financial claim. The risk of a financial claim against you will only end on your spouses death, remarriage or if there is a court approved financial settlement ending all claims between you. Even if there was a written agreement between you both and assets were divided, if this is not approved in a court order it is not a full and final settlement and there will still be a risk against you. There have been a few high profile cases in recent years where spouses had been divorced for many years (in one case over 19 years ago!) and no court approved financial settlement was made at the time, and the spouse was entitled to pursue a claim. Given the serious financial consequences this may have on you - for example if your financial position greatly improves in the years to come - it is strongly advisable that you seek a court approved financial settlement which our expert divorce solicitors can advise and assist you with.




We are getting married / entering into a civil partnership - should we get a prenuptial agreement?


At the moment, pre-nuptial agreements are not legally binding under English law, however if they are prepared and entered into correctly with full and frank financial disclosure between you and your partner, they will hold strong weight in the event of a divorce. If you are getting married and you have assets and finances, it is always advisable to obtain legal advice on having a pre-nuptial agreement before the marriage. Our expert divorce solicitors can discuss your situation and requirements if you are thinking of entering into a pre-nuptial agreement.




I don’t own the family home, can my spouse sell it without my consent?


It is extremely important to protect your interest in the family home. If you do not own the family home, then you ought to have a Home Rights Notice registered against the property. This will ensure that your spouse cannot mortgage, sell or give away part of their interest in the property pending a full financial agreement with you. This is an entirely usual step to take as it simply protects your position if you are not a registered owner of the family home.




I do not have any pension provision and my spouse does – what can I do?


Married couples have rights against each other’s pensions and there are a few ways of dealing with pensions.

One is for there to be a Pension Sharing Order whereby a lump sum of money comes out of one pension and goes straight into a pension held in the other spouse’s name. Going forwards each spouse would then have a separate pension pot.

Another option would be for each spouse to keep their own pension, but for there to be offsetting to equalise the figures with other marital assets, such as savings and investments.




Should I deal with the finances first and get a divorce at a later stage?


If you decide the marriage is over it is advisable to start the divorce proceedings as soon as possible because the Court is not able to make any financial agreement into a binding and final Order until the Decree Nisi, the first stage of the divorce has been pronounced.




I have no assets and have been married for a really long period of time – what should I do?


If you have a long marriage, the starting point generally is for everything to be reasonably equally divided between the spouses and see whether that looks right in all the circumstances.

The first thing to do is to pin down all the figures. Once the figures have been clarified and are clear, it is a matter of looking at everything and working out what solution will best meet everyone’s needs, as far as it is possible to do so.




Does my ex have to continue to pay half the mortgage?


Yes, your ex will have to pay half of the mortgage if they are listed on the mortgage as both of you will be equally liable to the mortgage lender. If any payments are missed, then the mortgage lender will contact both of you for the outstanding balance plus any costs.

If mortgage payments are continually missed and neither of you can afford the repayments pending a financial settlement, then it might be worthwhile agreeing with your ex partner to contact your lender to see whether they would consider a holiday mortgage – this would cease monthly mortgage payments for a period of time to allow you both to save money moving forwards.




Who gets to keep the family pet?


A pet is classed as property and it is generally arguable as to who gets to keep the family pet. Factors to consider are: who purchased the animal; whose name is it registered in; who primarily cared for the animal and who paid for the outgoings relating to the animal. Following this, it is a good idea to think about what would be in the animal’s best interests.




I want to protect my assets/I am not sure if I want a divorce – should I get a post-nuptial agreement?


If you wish to protect your assets or decide to reconcile with a partner, then you may wish to consider preparing a post-nuptial agreement. Post-nuptial agreements are currently not legally binding in England.

However, in the event that you decide you would like to obtain a divorce, if there is a properly drawn up post-nuptial agreement, then the Court is likely to follow what it outlines, as long as people’s needs are being met.




What is the difference between Joint Tenants and Tenants in Common?


If you hold a property as Joint Tenants, you hold the property in equal shares and you have equal rights to the whole property. If one of the owners were to die, their share would automatically pass to the surviving owner/owners - this is the case even if a Will has been prepared to reflect that the property is to be inherited by somebody else.

Holding a property as Tenants in Common means that you could either own the property in equal shares or unequal shares. For example, one owner could own 75% and the other owner could own 25%. If one owner passes away, their share would not automatically pass to the surviving owner (unlike those who hold property as Joint Tenants) and instead, their share would pass in accordance with their Will (if they have one) or under the Rules of Intestacy.