Family Law – Q&A
Gill Scales, Partner is a family solicitor with over 22 years experience within this field. Here Gill answers some of the most popular questions she is asked by her clients:
Q1. I have been married less than a year, can I get divorced?
Answer: No. Divorce proceedings can only be started if you have been married for at least 12 months. Although nullity cases are rare, there may be grounds for nullity proceedings as an alternative to divorce, and these can be brought within the first 12 months of marriage. There is also the option of judicial separation, but to petition for divorce you need to have been married for at least 12 months.
Q2. Can I have a divorce on the grounds that myself and my spouse no longer wish to live together?
Answer: In this country it is not possible to have a no fault divorce, simply because you have fallen out of love or no longer wish to be married. It is necessary to rely upon the irretrievable breakdown of the marriage and then one of five facts.
If you have not been separated for longer than 2 years, it will be necessary for you to rely upon the facts of adultery or unreasonable behaviour.
If you have been separated for in excess of 2 years and you both agree to being divorced then that is often the simplest, most painless and straightforward way to obtain a divorce
Q3. Do my spouse and I need a solicitor to obtain a divorce and /or financial settlement?
Answer: Although you are not legally required to have a solicitor to handle matters for you, we strongly recommend that you do so. A solicitor will provide you with sound legal advice concerning your financial entitlement and guide you through the legal procedures relevant to your own personal circumstances. A solicitor will do all of this whilst having your best interests at heart. You may believe you are saving money by doing it yourself but mistakes made could prove to be costly in the end.
Q4 How much will a divorce cost?
Answer: Costs can vary between legal advisors. We are competitive and our clients get value for money for the excellent service and professional expertise that we provide. The clients that we represent invariably get the best outcome that they can achieve. Our fees are fixed at £500 plus vat and disbursements for undefended divorces for the Petitioner ( the person who starts the proceedings) and £150 plus vat for the Respondent. ( the person who opposes/responds to the proceedings)
Q5. How long does a divorce take?
Answer: Usually 4 to 5 months for an undefended divorce, but cases can vary depending on the complexity and whether finances and children matters are to be resolved.
Q6. Can I use an on-line service to issue a divorce petition?
Answer: Yes, you can, but please be aware that neither the on-line services nor the court advice can provide you with professional legal guidance to suit your specific circumstances.
Q7. Is it necessary for me to attend Court to obtain a divorce or financial settlement?
Answer: It is not always necessary to attend court if the divorce or financial settlement is agreed by both parties. A consent order will be drafted by your solicitor and will be submitted to the court for approval by a Judge along with some background information and relevant documents. It will be necessary to attend court if the terms of the divorce or financial settlement cannot be agreed easily. A solicitor will discuss your wishes and negotiate on your behalf to get you the best possible outcome.
Q8. Will I need to attend mediation?
Answer: It is now a requirement for you to attend mediation prior to issuing any court proceedings. There are exceptions, most particularly, where you have been subjected to domestic violence or there have been child protection concerns or the case needs an immediate hearing.
Q9. Do I need a solicitor if I go to mediation?
Answer: You are not obliged to seek the advice of a solicitor for the first part of the mediation process but we strongly recommend that you do. It is often the case that those that have not sought advice at the outset of matter will seek advice from a solicitor when matters become tricky and they do not know what to do. After the conclusion of mediation you may need to instruct a solicitor to draft the legal documentation embodying any agreement that you have reached. Successful mediation can prevent you having to pay a large amount of legal costs (mediation itself is not free but will work out cheaper than having a long complicated and drawn out dispute).
Q10. If my spouse and I agree on the arrangements for our children after our separation, does this agreement need to be approved by the court?
Answer: No. After separation and divorce yourself and your spouse will continue to have parental responsibility for the birth or adopted children of you both, and unless a dispute arises as to which parent the child/children should live with, or how much time they should spend with each parent no further involvement with the court is necessary.
Q11. Are prenuptial agreements binding?
Answer: If correctly advised upon at the time of preparation, and correctly prepared and signed they can indeed be legally binding. This is a complex area and each case would warrant individual advice from a solicitor.
Q12. Are all assets divided equally?
Answer: Equality is the starting point in financial cases. The financial settlement will depend on a number of factors including but not only the length of the marriage, your respective incomes and whether an equal division of capital will be sufficient to provide a new home for both parties, in particular, the parent who is the main carer for the children. These cases can be very complicated, and we do advise that you obtain specific legal advice in relation to them before reaching any agreement.
Q13. Are pensions always shared upon divorce?
Answer: Both parties can make a claim for a pension sharing order upon divorce and the joint value of pensions may be shared, particularly if the value of the pensions was built up during the course of the marriage. It is possible for one spouse to take a larger capital share instead of a pension share, but this would depend on the facts of the case, the other values of the assets, the wishes of the parties and the general circumstances.
Q14. I own a company. Do I have to reveal the existence of the company and its accounts to my spouse as part of the financial proceedings?
Answer: Yes. Both parties have a duty to provide full and frank disclosure of their financial circumstances, including any company of which they are a director of or shareholder in.
Q15. I have found out that my spouse has lied re their finances and I have agreed a financial settlement relying on the information disclosed. Can I re-open the case?
Answer: Following a recent House of Lords decision-yes. Again this is a complex area of law, and specific instructions and advice would need to be given with regard to your own circumstances.
Q16. If we are not married, how does the law decide disputes on property?
Answer: The law operates differently for married and unmarried couples. (1) If you bought your property jointly but not in specified shares, it is possible that you could claim more than 50% if it is clear that you did not intend the property to be owned 50/50 (2) The Court can,in some cases, decide what is fair by looking at how you have paid towards, maintained or improved the property throughout your ownership of the property. We would always recommend that if you are not married you set up a declaration of trust setting out what shares you each own, if you do not intend them to be equal. These cases are complex and we strongly advise you to take legal advice when buying a property with a partner or when deciding a family dispute.
Q17. Is the law governing divorce for same sex couples the same as for heterosexual couples?
Answer: Very similar but not identical. The Court can dissolve marriages and make a variety of financial orders to assist divorcing couples.
Q18. I have heard that the courts favour awarding custody/residence to the mother in a case. Is this true?
Answer: No. The case is considered on its own individual circumstances and with the welfare of the child or children being the court’s paramount concern. It is not always the case that the children remain with the mother. Every case is looked at upon its own merits.
Q19. If my spouse has stopped maintaining myself and the children post-separation, can I apply to the Court for an order forcing them to pay?
Answer: Yes. An order for maintenance pending suit can be sought. Maintenance for children is dealt with via the CMS.
Q20. I am divorced and have a 12 year old son. I want to relocate to Spain. Can I do so without my ex spouse’s permission?
Answer: No. You will need either their permission or an order of the Court allowing you to do so. Advice should be sought in cases such as this.
Q21. I have a Court order which my ex-partner keeps breaching and denying me contact to my children. What can I do?
Answer: You can apply to the Court to enforce the order and if the breaches are found to be proven, the Court has a range of sanctions that it can apply.
Our specialist team has decades of experience dealing with all types of divorce and family matters. If you would like to discuss any of the issues featured above, please contact Gill Scales in confidence on: 0151 709 4491 or at email@example.com