Will I have to go to court?
Whether or not you have to go to court as part of your divorce proceedings will depend on your specific case.
Very few divorces are in fact contested and our divorce solicitors will always advise you very strongly against considering contesting divorce itself – frankly, you’re almost certainly fighting a losing battle – the courts broadly take the view that if just one party to the marriage feels that there marriage has irretrievably broken down – then it has.
However the situation is different with regard to financial issues arising out of divorce, and disagreements about the care of your children. If you and your spouse are able to come to an agreement between yourselves with regard to finances or children, and the case is not contested, you won’t need to appear in court and you and your divorce solicitor will be able to handle it largely over the phone or e-mail. However, if you fail to agree about issues such as your finances or how to look after your children following the divorce, you will have to make at least one court appearance.
Separation without divorce – is it possible?
Some couples do separate without getting divorced. For instance, a married couple could take the decision to temporarily separate before they made the decision as to whether they should split permanently.
There are also other steps that you can take depending on your situation that might mean you are able to separate without divorcing. If you have been married less than one year, then divorce is simply not available. You will have to wait 12 months before applying for divorce – although an application for a judicial separation rather than a divorce is possible if the marriage is under one year old. Furthermore, in the highly unlikely event that your marriage is deemed to be legally invalid, you will be able to apply for an annulment. This is very rare indeed.
You might also be able to get a separation agreement that can help you divide your assets after a split without taking the decision to get divorced, although that would be an option later on if you still wished to do so. If you are in a civil partnership and split with your partner, the process is similar [although subtly different] to divorce and the end result is that your partnership would be dissolved rather than divorced.
If you are interested in pursuing alternative separation options to divorce, you should speak to your divorce solicitor.
Will I have to share my pension?
Whether or not you have to share your pension will depend on your circumstances. In many marriages, one spouse has much larger pension provision than the other on the understanding that the other would benefit from that provision on their retirement. This can leave one spouse in some difficulty in the event of divorce and so courts do include pensions as part of the family assets to be distributed between husband and wife. This doesn’t necessarily mean that pensions must be shared – it really depends what other assets are available. For example, although every divorce is different, it’s not unusual for one party to retain their larger pension in return for giving up their claim on other assets – perhaps the family home.
There are a few options for this: sharing the pension between you; offsetting the loss of the pension with other matrimonial assets, such as property; earmarking the pension, which is where a court awards a percentage of one spouse’s pension to the other. Click here to read more about these options on our Pensions page.
Can I file for divorce if I committed adultery?
If you are the person who committed adultery, you will not be able to file for divorce under those grounds. If you have committed adultery and want to divorce your partner, you will need to do so for other valid reasons. However, your spouse will be able to divorce you because you committed adultery if they so choose.
This is slightly different in civil partnerships; while adultery is not given as a specific reason for filing for dissolution of a civil partnership, it can form evidence of ‘unreasonable behaviour’, which can be used as grounds for separation.
What is unreasonable behaviour?
Unreasonable behaviour is one of the things that you are able to use as grounds for divorce, although if you are petitioning for divorce you can only cite your partner’s unreasonable behaviour, not your own.
Unreasonable behaviour is defined as behaviour that means you cannot reasonably be expected to live with your spouse any longer. For instance, if your spouse abused you, prioritised their career over you so that you never saw them, refused to help with the children, paid you little or no personal attention or simply if you no longer had anything in common, you might be able to use such unreasonable behaviour as grounds for divorce.
One thing you could consider is that the divorce will go through much more smoothly if your spouse can agree to the terms of the divorce; in order to maximise your chances of obtaining their agreement, it can be a good idea to be selective about the cases of unreasonable behaviour you use as your evidence. Even if you are selective, however, you still need to provide enough evidence to convince the court a divorce is the right option. This is why obtaining the right legal advice is so helpful; our specialist divorce solicitors will be able to talk you through the issues and help you present your case so that it gives you the best possible chance of getting your spouse to cooperate.
What do I do if I can’t get access to my children?
Issues with children can be emotional and complicated, so if you are unable to resolve any issues amicably with your spouse, you will really need to seek good legal advice. Click here for information about other options, which can include collaborative law or family is mediation, both of which can help you resolve your differences in as friendly a fashion as possible.
Sometimes, there are issues concerning parental responsibility that mean one parent has it and the other doesn’t, depending on your marital status, when the child was born and whether the father’s name is on the birth certificate. Also, just because have parental responsibility, that doesn’t necessarily guarantee you access to your children; you might need to apply to court for a Contact Order in cases where your ex spouse is being unreasonable. If granted by the court, a contact order could require your spouse to let you see the children within the terms laid out by the Order, which will be made with the children’s interests in mind.
If you are unable to see your children and you apply for a Contact Order, the court are obliged to look first at what is in the children’s interests, not yours, but do have to take certain things into account including:
• Any instances of abuse that might mean you should be kept away from the children for the sake of their safety.
• The child’s wishes.
• The child’s age.
• The general welfare of the child and other relevant issues, such as their relationship and level of attachment to you.
What do I do if my spouse won’t support the children?
If your children are living with you, your spouse is absent and won’t pay you maintenance to support them, you have several options.
If you are not yet divorced from your spouse, you might want to consider looking at a separation order. This is an agreement that enables you to make provision for the children and, if your spouse doesn’t keep up their end of the bargain voluntarily, it can be enforced through the courts. You would then be able to apply for a divorce once these arrangements were in place.
If you are experiencing issues with your spouse regarding the children and are unable to reach an agreement with them directly, you should speak to your divorce solicitor. Click here for more information about maintenance.
How much does divorce cost?
There are a few costs associated with a divorce that you will need to take into account, and the total cost will depend on how straightforward it is. For instance, if the case is contested then it will take much longer to complete and so will cost more. Typically, divorce costs can include:
• Court fees
• Your solicitors fees
• Mediation services (if appropriate)
• Administrative costs of implementing agreements (such as conveyancing costs estate agents fees and stamp duty if you decide to sell your house, as well as other issues relating to the division of your assets)
My spouse owns our house – what should I do?
As long as you have been married for a significant period of time, it will probably not be a huge problem whose name is listed as the owner of your house. This is because all marital assets are considered when the court is making its decision, as are other contributions to the marriage and family. For instance, your spouse might have worked to pay the bills while you looked after the home and the children. Be aware that, however, the position is very different indeed if you had a very short marriage
If you are worried about the ownership of your house, or if you are thinking of moving out or selling it, you should seek legal advice as this could have an impact on your divorce.
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