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Private Individuals > Family Law > Frequently Asked Questions

Frequently Asked Questions

Divorce

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How do I get divorced?

Filing a divorce petition at Court, but first you must decide what to put in it - see "What are the grounds for a divorce?"

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What are the grounds for a divorce?

There is only one ground for a divorce, that being irretrievable breakdown. This must be supported by one of five facts:

  • Your spouse has commited adultery
  • Your spouse has behaved in such a way that you are no longer expected to live together
  • You and your spouse have lived apart for two years and your spouse agrees
  • You and your spouse have lived apart for more than five years
  • Your spouse has deserted you for two years

It is common for people to put "irreconcilable differences" on a petition, this is not sufficient and one of the above needs to be used and further details given.

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How much will it cost?

We charge an hourly rate and this depends on the status and experience of the person. However, a divorce, the paperwork to dissolve a marriage, normally costs approximately £1000. This includes the Court fee to issue the petition.

Please be aware, to assist with a finanical settlement will be a different amount. The cost of this greatly depends on how much involvement we have.

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How long will it take?

The divorce, without resolving the finances, takes normally between four and six months. Sometimes it is best to finalise the financial statement first before actually applying for the last stage of the divorce.

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It's not adultery if we're already separated?

This is not true. If you are still married, you haven't obtained Decree Absolute, and someone starts a physical relationshipwith another person, this is adultery. This has very little relevance to financial discussions. It can be used as a ground for divorce.

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Is there such a thing as a "quickie divorce"?

You quite often hear the phrase a "quickie divorce". However, the procedure through the Courts cannot be shortened considerably. There is at least a period between Decree Nisi and application for Decree Absolute of 6 weeks and 1 day.

Often divorces can go through quickly if both spouses agree to the fact being used for divorce, there is no delay in any part of the process, then it can be "quick" taking the quickest 4 1/2 to 5 months. The avergae is 6 months.

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Common Law Marriages

There is no such thing - see questions/answers for unmarried couples. The Law Commission have made recommendations, but these have not been made law yet.

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What if my partner leaves but stops paying the bills?

This depends as to whether the bills are in joint names, in your name or your partner's name that has left. In joint names you will legally both be individually and jointly liable for the outstanding debts. Therefore it may be hard to get your ex partner's contribution but if it is in your name then you will be liable for that debt and vice versa. If it is in your partner's name he/she will be liable.

Your partner is not liable to pay maintenance for you, only liable to pay child maintenance in accordance with national calculation that is currently governed by the Child Support Agency. Different circumstances in respect of divorce. If you are married then you can apply to the Court, if necessary, to make your spouse pay maintenance to cover such bills until such time as the financial settlement for the permanent division of money or assets has been made.

Children

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"Custody" and "Access"

These terms are not concepts now recognised by the English Court. We now refer to "residence" and "contact". This was a change to move away from parents "rights" towards the child(s)ren(s) perspective.

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What happens if there is a dispute over who the child(ren) should live with?

There is not a presumption that it will be the mother. The focus should be what is best for the child(ren). If you cannot agree the Court can be involved and decide. This is the last option. The Court will encourage you to discuss it maybe in mediation.

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What is Parental Responsibility?

There is no legal definition to Parental Responsibility. It includes the right/responsibility to make welfare decisions for a child such as education, health, religion, where a child lives. However this is not an extensive list.

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How do I get Parental Responsibility?

A Mother obtains it by giving birth. A father, however, has this responsibility only if he is married to the mother when the child is born or has acquired legal responsibility for his child through one of these three routes:

  • (From 1st December 2003) By jointly registering the birth of the child with the mother
  • By a parental responsibility agreement with the mother
  • By a parental responsibility order, made by a Court
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How do we work out the child maintenance?

It is usually best to try and agree a figure. The Child Support Agency's current calculations run on the lines of:

  • 15% for one child
  • 20% for two
  • 25% for three

For over three children, details as to how overnight stays and other information, visit the Child Support Agency website. Please note that they will soon be known for Child Maintenance and Enforment Commission.

If there are problems with child maintenance, paying or collecting, then contact the Child Support Agency.

Unmarried couples/Living together

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We are not married and we live in my partner's home. Am I entitled to anything?

There is no simple answer to this. The law gives no automatic rights to a partner in these circumstances, but if you have contributed towards the deposit on a purchase, or provided money for significant improvement to the house, you will usually have a claim. It is worth getting legal advice.

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If we have been living together, but haven't married, does everything have to be split 50/50?

Not necessarily. If you have decided something about the house you live in or property you own and that has been recorded on the deeds, then that has to be followed. However, it can sometimes be challenged.

If not, there are different areas of the law that govern this area and it can greatly depend on your circumstances. Yet it is possible that someone ends up with nothing.

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What happens to the children if we split up and we're not married?

Please see the Children section. In short, it does not make a difference if you are married or not, the important things are to have Parental Responsibility and to consider the children's welfare needs.

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What if my partner won't leave our shared property?

If you have not entered into an agreement as to how long you are going to live together and separate, then when coming to separate and leaving a property this will depend on how the property is owned or rented. If it is in joint names, then it may be hard in the short term to enforce somebody to leave the property. In the long term, you may need the Court's assistance and legal advice to discuss your best options as this can depend on whether there is a threat of violence, violence involved and if there are children in the property.

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What if my partner leaves but stops paying the bills?

This depends as to whether the bills are in joint names, in your name or your partner's name that has left. In joint names you will legally both be individually and jointly liable for the outstanding debts. Therefore, it may be hard to get your ex partner's contribution but if it is in your name then you will be liable for that debt and vice versa. If it is in your partner's name he/she will be liable.

Your partner is not liable to pay maintenance for you, only liable to pay child maintenance in accordance with national calculation that is currently governed by the Child Support Agency. Different circumstances in respect of divorce.

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What is a Pre-Nuptial Agreement?

A Pre-Nuptial Agreement is a document in which a couple sets out how they want any property, debts, income and other assets purchased together or acquired individually or brought into the relationship and how these should be divided if the relationship ends.

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Will a Pre-Nuptial Agreement stand up in Court?

At the moment a Pre-Nuptial Agreement is not legally binding in as much as a Divorce Court in England and Wales can undo any agreement reached in a Pre-Nuptial Agreement and impose its decision if it feels there needs to be a different outcome which always depends on the individual circumstances at the time of a divorce or separation.

However, these agreements are persuasive and if carefully thought out can be a useful tool to the Court on a separating couple as to how they originally wanted assets, income, debts and so on to be divided.

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Do I need a Pre-Nuptial Agreement?

If you have any concerns as to how you think assets and other financial matters would be divided should you separate or divorce as a married couple, then you should consider having a Pre-nuptial Agreement.

They tend to work for people who are getting married for the second time or more and for people that have older children and want to ensure that something is left to them in a Will after death or any other circumstance.

Civil Partnership

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Can I get divorced?

Yes. Civil Partnerships can be dissolved as long as you have been registered as a Civil Partnership for more than a year. A change in the law in 2004 gives separating Civil Partnership couples almost the same procedure as divorcing couples with slight alterations. The only main difference is that a civil partnership cannot be dissolved on the basis of adultery.

It is also worthy of note that not all local County Courts have the ability to deal with the dissolution of civil partnerships.