Swain & Co. Divorce lawyer, Nicola Whitley, explains what you can expect once you make the decision that you want to end your marriage.
New Year brings new beginnings, and is typically busier a time for divorce lawyers.
Regardless of when you decide that you want a divorce, people are often left thinking, what next?
So, Nicola Whitley has looked to explain what people can expect when they decide that their marriage is over and that divorce is the natural next step.
I want a divorce, so what do I do now?
In England and Wales, if you have been married for more than a year and can show that your marriage has ‘irretrievably’ broken down, you can issue a divorce petition at Court.
You will need:
- Your Marriage certificate
- Court fee (which is currently £410)
How long will my divorce take?
The answer to this question really depends on the complexity of your case.
If you start divorce proceedings then the divorce usually takes around 5-6 months.
However, many seek to resolve financial matters in divorce and this may mean the divorce takes longer. We advise that financial matters are resolved before your divorce is concluded.
The Court deals with financial matters separately to the divorce itself. So, this will then make the ‘divorce’ process longer.
Does someone have to be ‘at fault’ on the legal documentation?
To obtain a divorce, the Court needs to be shown that your marriage has broken down irretrievably through one of five factors:
- Your spouse’s adultery
- Your spouse’s unreasonable behaviour
- Your spouse’s desertion for two years
- You have been separated for two years and both consent to the divorce
- You have been separated for five years (with no need for your spouse’s consent)
So, you will have to establish adultery, unreasonable behaviour or desertion to obtain a divorce if you haven’t been separated for two years, or if your spouse doesn’t consent.
The reality is that in divorce ‘fault’ or who obtains the divorce rarely effects the outcome.
We don’t have any children, so how will assets be divided?
Wide discretion is used in resolving financial matters through the Court and there are no fixed outcomes to advise on. The Court will decide each case on its own merits by applying statute and principles from case law.
Certain factors are considered by the court, including:
- Length of the marriage
- Your standard of living
- Earning capacity
- Income
- Property
- Financial resources
- Needs
- Obligations
- Responsibilities
In the majority of cases, if your assets do not exceed your needs, then the Court will strive to ensure that needs are the determining factor and you both are suitably re-housed.
If both you and your partner’s needs can be met, then the Court will consider arguments such as assets being brought into the marriage independently by yourself of your spouse.
We have children, so how will assets be divided?
The Court’s primary concern will be the welfare of your children, focusing on their housing.
If assets are not sufficient to meet both your needs and your spouse’s needs, then priority will be given to the parent with the care of the children to ensure that the children are suitable housed and their day to day income needs are met.
Then the Court will consider the factors mentioned previously.
Am I entitled to demand our family home in my divorce – can my spouse force the sale of my home?
Taking a general view of assets, the Court will consider whether it is affordable for you or your spouse to keep the family home or whether it needs to be sold.
The Court has powers to grant various orders in relation to your home, including:
- Transferring your home to either yourself or your spouse, with or without a mortgage
- Sale of your home and division of the proceeds (this might not be in equal shares)
- That the property is retained by yourself or your spouse until a specified event, such as a child reaching 18, perhaps with a deferred interest
I gave up work to raise our children so I only have a small pension, what do I do now?
The factors that the Court will consider include both spouse’s contributions to the marriage, and this includes non-financial contributions such as looking after your home and children, as well as the financial implications of giving up work.
The Court has the power to order that pensions are shared in specific percentages to allow for equality on your retirement.
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