How long do you have to be married in order to apply for a divorce in England and Wales?
The law states you have to be married for at least 12 months before you can apply for a divorce.
I want to get divorced but I do not know where my husband/wife is. Can I still proceed?
You can apply to dispense with service of the petition. However if you are alleging adultery or 2 years separation by consent this option is not available to you and you may wish to seek legal advice.
What is ancillary relief?
This is the legal technical term for asking the court to make a ruling on finances of the marriage, dividing up assets and liabilities and making any orders for future financial provision.
What is the process for applying for ancillary relief ?
- Issue an application in the court which is dealing with the divorce
- The court then sets a date for the First Appointment (FA)
- Before the FA you must fill in a Financial Statement (Form E)
- Both sided exchange completed Form E on the same day
- the court sets a deadline for each side to compose a draft Questionnaire
- You attend the FA. The judge decides if all the questions in your draft questionnaire are really relevant and then approves the final version.
- A date for the Financial Dispute Resolution Hearing (FDR) is set.
- Bothe sides must answer the others questionnaire, including providing supporting documents.
- You attend the FDR hearing. The judge ascertains any offers each side is prepared to make and may suggest his or her view and ask the parties to go outside and negotiate.
- If an agreement cannot be reached the judge will set further court dates for a Pre-trial Hearing, filing of witness statements and final hearing.
- At the final hearing the judge will decide what financial orders to make taking into account factors set out in section 25 Matrimonial Causes Act 1973.
What is a consent order?
As part of ancilliary relief proceedings If agreement is reached this is evidenced by a formal court document known as a Consent Order. A solicitor needs to draw up the Consent Order and a second document called a Statement of Information. The other spouse / civil partner needs to obtain independent legal advice before signing.
My spouse is the sole legal owner of the property in which we live or only their name is on the rent book. Will I have to leave the house ?
Not necessarily. If you are married then your solicitor can protect your interest by registering a Notice on the title deeds to the property. This will protect your interest because it will effectively stop your spouse from selling or remortgaging without your knowledge or consent until financial matters have been agreed or decided by the court, which has the power to transfer the property or the lease under which you occupy to you even if it is not in your name. The judge can also decide whether the property should be sold and whether you should receive money from the sale.
I have left the house and my children. Does this mean I do not have to pay the mortgage or bills?
You will still be jointly liable to pay the mortgage and bills.
If my husband starts proceedings in another European country, can I then start proceedings in England ?
Generally proceedings will take precedence in the country where they are commenced, subject to the domicile rule. This can be an important reason to start proceedings quickly in England as if proceedings are in another European country, different rules may apply which may affect your financial settlement.
Do I not have rights as a common law spouse?
The concept of common law husband and wife is a myth. Courts cannot order one person to support another by paying maintenance unless they are or have been married. There may however be other circumstances giving rise to a claim against property. Also, if one partner has died, the court can order the executors of their estate to provide some form of support under certain circumstances.
Are pre-nuptial agreements binding?
Whilst pre-nuptial agreements are not conclusive as to the way in which the court will deal with a divorce, it is also incorrect to say they will be simply ignored. It depends on the case, the length of marriage, the reason behind the agreement and content and whether there are children of the marriage.
We married abroad, can we still divorce in England?
The issue is not where you married, but where each of you are living. You can divorce in England if either you, or your spouse are habitually resident or domiciled in England or Wales at the time iof divorce and whatever your nationalities
What kind of Orders do the courts make on divorce ?
Under Section 23 of the Matrimonial Causes Act 1973, the Court has wide powers to make orders on property, assets and future financial provision between spouses, including :-
- Property Adjustment Order - this requires one party to transfer all/part of an interest in a property to the other party.
- Lump Sum Order - this provides that one party must pay the other a fixed sum of money.
- Periodic Payments Order - this provides that one spouse must pay the other a specified sum of money each month/week, or as appropriate.
- Secured Provision Order - this is similar to maintenance, but it is secured against an asset (such as the former matrimonial home).
- Pension Sharing Order - this provides for a specified percentage of the 'cash equivalent transfer value' ('CETV') of a pension to be transferred to from one party to another.
- Pension Attachment Order - the Court can make an Order directing Pension Trustees to pay a percentage of the lump sum or pension, when it matures to another party.
In deciding the correct approach, the Court takes into account many factors, including;
- The welfare of any minor child of the family, which must come first.
- The age of each party and the duration of the marriage.
- The financial needs, obligations and future responsibilities of each party to the marriage.
- The income and earning capacity, property and other financial resources of each party.
- Contributions of either party to the welfare of the family.
- Any physical or mental disability of either party to the marriage.
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The conduct of each person, but only if it is so bad it would be unfair to ignore it.
- Any serious disadvantage to either person which may be caused by ending the marriage.
- Whether the case is an appropriate one for a 'clean break'.
Which Court will deal with my divorce?
A Divorce Petition can be issued in any divorce County Court in England and Wales, and does not have to be issued in the area where you or your spouse live.
I am the father and did not get married, do I have any rights to the children ?
If the child was born after 1st December 2003, and your name was registered on the birth certificate as being the child's father, you have Parental Responsibility and have the same rights as if you and the mother were married. Otherwise, you do not have any automatic rights so will need to either agree with the child’s mother or apply to court for a parental responsibility order.
Maintenance for the children ?
The non-residential parent has a legal obligation to pay maintenance in respect of his or her child. If agreement as to the appropriate level of maintenance cannot be agreed, application has to be made to the Child Support Agency. The CSA formula is 15% of net income (gross income less income tax, national insurance and pension contributions) for one child, 20% for two children and 25% for three or more. This can be reduced to take into account various factors, the most common of which is the amount of time the children spend with the non-residential parent. The income of the residential parent is not relevant, nor is the income of either parent's new partners.
In divorce, ancillary relief or children proceedings can I claim legal costs against the other party?
If a divorce is based on adultery, desertion or unreasonable behaviour of the other party, the Court might decide that he or she should pay your costs. Normally in a separation case, each party will pay their own costs. It is very unusual for one party to be ordered to pay the costs of the other in a case concerning the welfare of their children. In disputes over money arising on divorce, (ancillary relief), the starting point is that each party has to pay their own costs and expenses, subject to the fact that if one party is seen to be lying, withholding evidence or failing to co-operate, that party may be ordered to pay costs at the court’s discretion.
Can I change my child's surname?
This is not straightforward. If you share Parental Responsibility for the child with the father, (or anyone else), you will need to seek the consent of everyone else that has Parental Responsibility and you should not change your child's surname without all of their consent in writing. A child's surname is considered to be a welfare issue to be determined by the court under the rules in the Children Act 1989.
The father of my child does not pay any money towards his support, can I stop him having contact?
This is treated as a separate issue from contact. If the father is not paying maintenance, this issue should be pursued through the CSA, and the child’s emotional welfare must always be put first.
What if my ex wants to take our child abroad on holiday, or go abroad to live permanently?
If you have parental responsibility, then normally your permission is needed for any trips abroad (although there are some exceptions to this). If you cannot agree on this, then you can apply to the court to decide the matter.
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