Family Frequently Asked Questions
Who will pay the divorce costs?
If you initiate the divorce you will be known as the Petitioner. Your Solicitor will need to prepare the divorce petition and certain other documents on your behalf. As you are initiating the divorce you will be asked to pay the Court fees as well as your Solicitors fees and VAT on those fees. If you are the Respondent in a divorce (i.e. your spouse has initiated divorce proceedings) you will be responsible for your Solicitors fees and VAT on the fees, however, you do not have to pay Court fees as these are payable by your spouse. In some cases the Petitioner can seek repayment of their costs from the Respondent.
How long a divorce will take to complete?
In general, a straightforward, undefended divorce, where both parties are prepared to co-operate, will generally take somewhere in the region of 4 to 6 months to conclude. However, if the parties cannot agree or if one party causes a delay when completing and returning paperwork to the court this can extend the time it takes to finalise a divorce. Additional delays may also occur if there are financial issues to be addressed.
How much will a divorce cost?
This will depend on what is involved in your case and for instance whether you are just seeking a divorce, or whether there are financial issues or a dispute regarding children to address. Costs will therefore vary depending on the nature and complexity of the issues involved; however a Solicitor would be able to give you a cost estimate at the outset of your case. In general, a divorce can be completed on a fixed rate. Any complex work is charged on an hourly basis, e.g. if an agreement cannot be reached quickly with your former spouse, the greater the costs are likely to be.
Can I stop him/her from harassing me?
If you feel you are at immediate risk of violence as a result of harassment, then you should call the police. It is possible to apply for an injunction called a Non-Molestation Order under civil law.
What is a Non-Molestation Order?
A Non Molestation Order is a Court Order to prevent your current or former partner, or other family member, from using or threatening violence against you or your children. It can also prevent your partner or family member from intimidating, harassing or pestering you or instructing anyone else to do so. A Non Molestation Order is usually granted for a fixed period of time for example six months, but can sometimes be granted for an indefinite period. If you are in immediate danger, an application can be made to the Court on the same day without your partner or family member being present.
Will I have to go to court to get a divorce?
Generally, parties to undefended divorce proceedings will not need to attend Court in relation to the Divorce. However, in the absence of agreement, you or your spouse can apply for the Court to settle a dispute regarding the financial issues arising from the breakdown of the marriage. If you have to attend Court, the court will encourage you to negotiate an agreement between you and your spouse (with the advice of your Solicitor), but failing that, the Judge will make a decision. Likewise if there is a dispute regarding the arrangements for the children which cannot be resolved by other means, you or your spouse may make an application to court to resolve this.
Do I need a court order?
If you are going through divorce proceedings, it is important to get a Court Order finalising the financial aspects of the Divorce.
Simply obtaining a Divorce does not automatically finalise the financial aspects.
Without a Court Order to finalise the financial aspects, any matters you may believe have been agreed with your spouse may be unenforceable, and without a Court Order, even if you think your spouse is not going to make a claim against you, they could make a claim against you in the future. Your Solicitor will discuss what is appropriate in your particular case, but it is important that any agreement is recorded in a formal Court Order.
If you have children then if an agreement can be reached as to the appropriate arrangements for the children there is no requirement to obtain any Court Order. A Court Order will generally only be obtained in respect of the arrangements for the children where an agreement cannot be reached.
What can I claim in my divorce?
This will depend entirely on the circumstances of your case and obviously each family case is different.
The Court can make orders for instance:
- For one party to pay a lump sum of money to the other; or
- Transfer property to one party; or
- For property to be sold; or
- For one party to pay spousal maintenance to the other; or
- In respect of any pension provision, and can for instance order that one party’s pension be shared with the other party.It is important to take legal advice as to what is appropriate in the circumstances of your particular case, as each case is different. Sometimes it is appropriate for there to be an interim provision, whilst negotiating an overall financial settlement, for instance who should pay what bills on the house in the meantime, or whether one party should pay interim maintenance to the other.
Can I keep the house when I get divorced?
1) Are you married/in a civil partnership with the partner you are separating from?
Sometimes one party will buy out the other’s interest in the property so that the property is transferred into their sole name for a sum of money. Sometimes the house will be sold and the proceeds divided in some manner (not always an equal division, again depending on the circumstances of the case and for instance whether there are other assets). Sometimes one party will be allowed to remain in occupation of the property for a period of time, for instance whilst there are minor children living in the property, and the other party will retain an interest in the property which they will realise in the future, for instance when the house is sold when the children reach majority. Again it is important to take specific advice on the circumstances of your case.
2) Were you cohabiting with the partner you are separating from? If you are not married then what will happen to the house will depend upon a range of factors such as whether the property is jointly owned, or whether it is in one party’s name but the other party can claim a beneficial interest in the property. This is a complex area of law and advice should be sought on the specifics of your case. If you have children then in some circumstances the Court can order that the house is preserved as a home for the children even where the parties are not married and the property is owned by the other party. Again you should seek specific advice as to the circumstances of your case.
What happens to the family home?
If you are married, then generally what will happen to the house will ultimately be resolved as part of a financial settlement within the divorce.
Your Solicitor would advise you as to this in more detail depending upon the circumstances of your case, but ultimately it may be that the house is sold in order for the proceedings to be divided in some manner, or sometimes one party will buy out the other’s interest in the property.
There is not generally a requirement to vacate the house until a financial settlement is agreed.
If, however, one party is violent or threatening to the other, then the other may seek a Court Order to occupy the house to the exclusion of the party who has been violent or threatening for a period of time.
Does it make a difference who divorces whom?
In the majority of cases it should have no impact on the eventual outcome as to who starts the divorce process. There may, however, be financial implications as the Petitioner (who issues the petition) will incur additional costs but depending on the grounds of the divorce, may seek to recover those costs from the Respondent. (This relates purely to the costs of the divorce and not any costs in relation to resolving for instance the financial aspects of the divorce). If you are the Petitioner, you will have more control over how long the divorce process lasts because this depends on when you lodge certain documents with the Court. You may, for instance, be advised not to apply for a Decree Absolute (this is the final document which ends the marriage) until after the finances have been settled, especially if your spouse has a considerable pension fund.
What is a decree nisi and decree absolute?
A decree nisi is the initial stage of a divorce when the court is satisfied that the legal and procedural requirements to get a divorce have been met. A decree nisi does not mean you are now divorced, in fact the marriage still exists.
A decree absolute is the final step in the divorce proceedings which means the legal marriage has been fully dissolved. An individual can only apply for a decree absolute after waiting at least six weeks and one day after the decree nisi has been pronounced. Once a decree absolute has been granted, you are officially divorced.
What is mediation and alternative dispute resolution?
Mediation is way to help separating couples deal with arising issues. It is not a relationship counselling process with the aim of reuniting a couple. Mediation is a type of alternative dispute resolution (ADR) which is an umbrella term that encompasses the different processes where couples can resolve their dispute without the need to go to court.
In essence, mediation is a form of ADR where a family lawyer, or trained mediator, aids the discussion between two separating individuals to help them resolve their issues in an amicable manner. The mediator can help set a timetable and format for discussion and disclosure and help settle matters, such as finances, rather than taken it to court.
What is a pre-nuptial agreement and how can we benefit from one?
A pre-nuptial agreement is a written agreement between two partners which in the event of a divorce establishes how you would like the assets to be divided. Although often deemed unromantic, such agreements are common amongst all couples and are particularly useful when there’s a difference in the financial positions between the individuals going in to the relationship, especially if one person has:
- Significant assets
- Inherited assets
- Getting married again
In the event of a divorce, a pre-nuptial agreement allows to sort out your assets sensible and fairly, reducing stress and potentially saving you legal costs further down the line.
What is a cohabitation agreement?
A cohabitation agreement is a legal document drawn up between two people who are about to live together or who already are living in the same property. The agreement establishes how the financial terms would be dealt with if the couple were to separate. The document can make sure the ownership of certain items are clarified, such things as the cars and specific jewellery pieces. It can also set out who the shared property would be dealt with and even how much each contributes to household expenses.
This document can prove to be extremely useful if a couple decides to separate, helping to reduce stress, arguments and costs.
I live in my partner’s house but I am not named on the documents. Do I have any rights?
There is a possibility in acquiring a financial interest in a property even if the individual is not a legal owner. If a person has made certain types of contributions towards the finances or lived there for a certain amount of time, it is possible to stake a claim. The situation, however, can be very complex particular if no cohabitation agreement has been established beforehand explaining each parties’ rights.