Divorce & Family Law FAQ | Irwin Mitchell

Family Law - Your Questions Answered

Many of our clients have similar concerns about the divorce process. Here we’ve answered a number of common questions about divorce, separation and other family law issues

Can I get a divorce? If so, when?

You can start divorce proceedings as long as (a) you have been married for at least 12 months and (b) you can demonstrate a strong enough connection to the country in which you are looking to get divorced. If you live an international lifestyle with homes and interests in more than one country, contact us to discuss your options.

You may need the consent of your husband or wife, depending on the reasons for your divorce. There is one ground for divorce in England and Wales - the irretrievable breakdown of a marriage. There are five ways to prove this breakdown:

  • Unreasonable behaviour
  • Adultery
  • Desertion
  • Two years separation with agreement to divorce
  • Five years separation (agreement is not needed in this case)
How long does the process take?

If the divorce is uncontested by your spouse, you could be divorced within 4-6 months of the petition being submitted.

Will I have to go to court?

Neither of you will have to go to court as long as the proceedings are uncontested. You will need to attend court if a dispute arises over children and financial matters and you cannot resolve that dispute out of court. We have solicitors trained in mediation and other out-of-court options, so contact us if you would like to know more.

Can I claim my legal costs from my spouse?

Depending on your reasons for divorce, it may be possible to ask the court to make an order that your spouse pays or contributes to your costs.

Am I eligible for Legal Aid?

Legal Aid may be available in certain circumstances. You can visit https://www.gov.uk/check-legal-aid for advice on whether Legal Aid may be available to you. You can find details of family lawyers who provide Legal Aid in your area by visiting www.resolution.org.uk

What is Alternative Dispute Resolution (or ADR)?

ADR is short for Alternative Dispute Resolution and is sometimes shortened to Dispute Resolution. It is an umbrella name to describe the processes that allow couples to resolve their dispute without going to court. Typically there are three types:

  • Mediation
  • Collaborative Law
  • Arbitration
Find out more about out-of-court options
What if my partner does not wish to use an ADR method?

Unfortunately the success of ADR depends on both parties wanting to resolve the dispute this way. If your partner does not want to use an ADR method then sadly you cannot force them to do so.

Not all family lawyers are trained in ADR methods and some lawyers may guide clients through the courts unnecessarily. Your chances of using ADR will increase if your partner’s solicitor also supports these alternative processes.

What are the benefits of ADR?

  • It is cheaper than going to court
  • Cases are dealt with more quickly
  • The couple retains control over the outcome rather than the lawyers or the court
  • It helps restore trust between the couple
  • It reduces bitterness, which can be important if children are involved
How will the court deal with the family home?

This is often the largest asset and can cause a lot of stress and arguments. It may be necessary to sell the property, with ideally both spouses having enough money available to buy a new home. In reality, this may not be possible. The court’s main priority will be to provide a home for any children. The court will take into account the circumstances of each particular case and what is fair and reasonable for both parties.

What orders can the court make about finances and property?

The court has powers to make a wide range of different orders including requiring one person to:

  • Pay a lump sum to their former partner
  • Sell property (e.g. a house or shares) to pay a sum to their spouse out of the proceeds
  • Make regular payments to their partner either for a specified period or for the duration of the parties’ lives. This is sometimes called maintenance
  • Transfer all or part of their pension to their spouse
  • Transfer all or part of any of their property to their spouse e.g. the family home, property abroad, investments such as shares, or cars or jewellery
  • Allow their spouse to remain in the family home until a certain date or event e.g. until the youngest child ceases full-time secondary education
  • Find out more about how we can help you with financial and property issues
Will bad behaviour affect the outcome in relation to finances?

It is very rare for the court take unreasonable behaviour into account when looking at how to redistribute money after the breakdown of a marriage. The court must only take behaviour into account if it would be unjust to disregard it.

For example, adultery does not entitle a cheated spouse to a greater share of the finances upon divorce. A person who has spent vast amounts of money without their partner’s agreement may be entitled to receive more of what is left in the matrimonial pot of assets.

Can there be a financial settlement without a divorce?

The court cannot make an order dealing with a separated couple’s finances and property unless there is a divorce, judicial separation or annulment.

If you don’t want a divorce but don’t want to carry on living together either, there are other options. However, many divorcing couples will be able to reach a financial settlement without the need to go to court. Any agreement can, in most circumstances, be reflected in a consent order which can often be approved by a judge and made legally binding without the need for either party to attend court.

What orders will the court make about where the children will live?

If parents cannot agree on the living and contact arrangements for their children, the court can make an order. This is called a Child Arrangements Order and sets out where a child will live and with whom they will spend time.

There is no presumption that parents will have equal amounts of time with their children. The court will make an assessment of what is in the best interests of each individual child. There is however a presumption that it is in the best interests of a child to have a continuing relationship with both parents unless that would put the child at risk.

If you are separating there are various options available to help you address the finer details of how a shared parenting arrangement might work. Arrangements negotiated by both parents have a greater prospect of long-term success. You can work with mediators or collaborative lawyers with a shared objective of achieving the children feeling that they have two properly involved parents, in whose lives they share.

What is parental responsibility? Do I need it?

All mothers and most, but not all fathers, have legal rights and responsibilities as a parent. This is a legal concept known as ‘parental responsibility’. It is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

A father usually has parental responsibility if he is married to the child’s mother or listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in).

Same-sex partners who were civil partners at the time of the treatment will both have parental responsibility. For same-sex partners who aren’t civil partners, the second parent can get parental responsibility by:

  • Applying for parental responsibility if a parental agreement was made, or
  • becoming a civil partner of the other parent and making a parental responsibility agreement or jointly registering the birth

If a parent does not have parental responsibility, it will:

  • affect the appointment of a guardian in a will
  • impact on their ‘status’ should the other parent choose to remove a child to live abroad
  • limit decisions being made about surnames, religion, serious medical interventions and accessing information such as medical notes or involvement with schools
Do I need a pre-nuptial agreement?

Pre-nuptial agreements are useful where one person is entering a marriage with substantial assets, has inherited assets or where they are getting married for a second time.

A pre-nuptial agreement is a written agreement between you and your partner which sets out how you would like the assets divided in the event of a divorce. While you may think this is unromantic, these agreements are becoming very common. It is a sensible way of dealing with the unfortunate event of divorce, as it helps to reduce the stress, and ultimately can help to save in legal costs. More importantly, it gives you a say on how you would like your assets dealt with upon divorce rather than leaving it to the court.

If you are planning to get married and would like to make a pre-nuptial agreement, contact us to discuss your options.

Are pre-nuptial agreements binding?

Pre-nuptial agreements are not currently binding in England & Wales but they are highly persuasive. The English courts place considerable weight on them so long as the agreement meets the needs of any child or children and is considered fair and reasonable under the law. We recommend that you and your partner get independent legal advice on the implications of the agreement, and that you sign the agreement at least 28 days before the wedding.

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