2020-06-09
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Family & Divorce FAQs

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Posted by Dal Heran on 09 June 2020

Dal Heran - Child Arrangements and Divorce Lawyer
Dal Heran Partner

Divorce is an emotionally challenging and stressful time. Dealing with both the financial and practical arrangements can seem daunting. There are many misconceptions which can cause confusion at a time when you really need clarity and clear direction.

Below we have tried to answer the most common questions we are asked to help you find clarity at this time. If you have any further questions, please feel free to get in touch.

Divorce

My spouse hasn’t done anything wrong but we no longer love one another. Can we still get divorced?

The only ground for divorce is the irretrievable breakdown of the marriage. You must show to the court one of five facts to include unreasonable behaviour (which is subjective) and separation as the reason that the marriage has broken down. We can discuss these options which are available to see how you can issue proceedings now.

I have lived apart from my spouse for 18 months, how would we go about starting divorce proceedings?

The only ground for a divorce is the irretrievable breakdown of the marriage. You must choose one of the five facts on which you wish to rely on in order to proceed with your divorce. You have an option to issue divorce proceedings based on two years separation with consent. You can prepare all the paperwork and issue the proceedings on the anniversary of living apart for two years.

I have split up from my spouse; do I have any other options separate to divorce?

You can formalise your separation by way of a Separation Agreement, which will incorporate any agreement that has been reached between you both, rather than issuing divorce proceedings.

How long will it take for me to be divorced?

A divorce can usually take three to five months to finalise from start to finish. You will also need to consider dealing with the finances of the marriage at the same time, which may delay the conclusion of the divorce proceedings. We issue divorce proceedings online which is a much quicker process.

I have received a petition from my spouse but do not agree to its contents, can I defend the allegations?

You have the option of defending the divorce proceedings however, this may not always be the best course of action, especially if you wish to save costs and time. Defending divorce proceedings can lead to matters becoming acrimonious. We can advise you of options that are available to you, which include defending the proceedings or informing the court that you do not agree with the contents of the petition that you have received, without having to defend the proceedings.

If I have met someone new, can I still get a divorce?

There are five different facts to issue divorce proceedings, three of which deal with two years separation or more. The other two options are either unreasonable behaviour or adultery. You would not be able to issue proceedings based on you commencing a new relationship, however, you may still be able to issue based on one of the other facts available to you. Your spouse may be able to issue proceedings based on your new relationship.

Costs

How will I afford my divorce?

We do offer a divorce on a fixed fee, which will allow you to budget for your divorce. Currently we accept payment by credit card. If you are on a limited income you may be eligible for a fee exemption for part or all of the court fee, which his currently £550. Unfortunately, legal aid is not available in most divorce cases.  If you have finances to deal with as part of your divorce, these are charged separately. Funding may be available through alternative funding arrangements. We can discuss this in further detail with you at the outset in your initial consultation.

Will my divorce cost me thousands of pounds?

We offer a fixed fee divorce to act on your behalf as the petitioner, on a straightforward undefended divorce which is £750 plus vat, plus the court fee which is currently £550. You may be eligible for an exemption on part or all of the court fee depending on your financial position.  We offer a fixed fee to act on your behalf as a respondent which is £250 plus vat. Any other disbursements will be in addition to these fees.

Financial and children matters are charged separately to our fixed fee divorce and are based on our hourly rates which commence from £180 per hour plus VAT.

Finances

What is collaborative law?

Collaborative law is a voluntary legal process which enables both parties to resolve matters with the support of collaboratively trained professionals. This is a process that parties enter into to deal with divorce, finances or children matters, to try and achieve a fair settlement that is agreed between both parties. The head of our family team, Justin Creed is a collaboratively trainer lawyer, so he can provide you with further information regarding this option.

How do I sort my finances out? Do I have to go to court?

You should obtain full and frank disclosure from the other party before trying to sort out any financial agreement. We can provide you with the right advice as to how to settle matters with your spouse regarding the division of assets such as any savings, pensions or the family home. If you can’t reach a settlement directly between yourselves, through solicitors or mediation, then it would be up to one of you to make an application to the court for financial proceedings.  

If I reach an agreement with my spouse, is this automatically binding?

No, it is not. Once a financial settlement is reached between you both, you need to incorporate this into a court order which will be sent to the court for the approval of the Court. This process usually takes place within the divorce proceedings. Once the order has been approved by the judge, this will become legally binding between you both.

What powers does the court have?

The court has the power to make a variety of orders. As an example, in financial proceedings within the divorce the court can make the following orders:

  • Payment of lump sums from one party to the other.
  • Sale or Transfer of a property owned jointly or by one of the parties.
  • Pension sharing orders
  • Spousal Maintenance
  • Child Maintenance

How long do you have to be married for it to be a long marriage and will this impact upon our financial settlement?

There is no definitive answer to how long you must be married for it to be classed as a long marriage. The longer you are married, the more likely it is that the court would consider an equal division between you both. If you have been married for only a couple of years, then the court are less likely to consider an equal division. The duration of the marriage is only one factor taken into consideration when the court looks at a division of the assets, other factors include the ‘needs’ of each party. The court will also take into account the time that you have lived together prior to getting married.

Property

Will I have to sell my house following a divorce?

Just because you are going through a divorce does not mean that you will have to sell your home. An agreement will need to be reached regarding the division of the assets, which will include any equity that may be in the family home. Options can be explored, which may include one spouse paying the other their share of the equity in the property, whether this is now or sometime in the future.

My spouse has another property in their sole name; will I have a right to this property as we are married?

All assets will need to be considered when considering a financial settlement. The Court have power to make a variety of orders regarding properties that are owned jointly or by one individual.

Will our property abroad be considered as part of our divorce? Yes, all assets and liabilities will need to be disclosed irrespective of whether they are located in this country or abroad. These may then be taken into consideration as part of a settlement.

My spouse has said I can live in the former matrimonial home but only until our youngest child turns 18, is this correct?

This is one option that is available to you, however, there are other options available whereby you can remain living in the family home for a longer period of time. Often a spouse can live in the home until your youngest child reaches the age of 18 or ceases full time secondary education which would include A levels or equivalent, however this would depend on many factors. We can discuss the possible triggering events with you.

Can I continue to live in the former matrimonial home for the rest of my life even after I divorce my spouse?

The family home will form part of a financial settlement between you and your spouse. If there is equity in the property, your spouse may be entitled to a proportion of this. If you wish to remain in the family home after the divorce has been finalised, it would be necessary to reach an agreement regarding the equity in the property and how this is divided between you both. For example, if you pay your spouse a lump sum for their share in the property, an order can be made for the family home to be transferred over to your name, so that you can remain living there after the divorce has been finalised. Alternatively, an agreement can be reached whereby you agree to pay your spouse a lump sum at a future date, which will allow you to remain living at the property.

My spouse has changed the locks on the matrimonial home without my consent, can they do this?

If the property is in your joint names your spouse should not have changed the locks without your permission or without obtaining an order from the court.

Pensions

Can I protect my pension during my divorce?

If you wish to retain your pension as part of a financial settlement through a divorce, then you have the option of offsetting your pension provision against other assets within the marriage.

Is it correct that my spouse will get half of my pension if we divorce?

The court will consider equalising pensions which have been accrued during the marriage. Recent case law has also shown that the court have taken into consideration pensions that have been accrued prior to the marriage. Depending on the individual circumstances of each case, it is possible to offset pension division, which essentially means that you could take lesser share in other assets, so that you can retain your own pension provision.

Will my pension that I accrued before my marriage be considered as part of my divorce?

It is possible that any pension accrued prior to the marriage may be taken into consideration as part of the divorce. A report by the Pension Advisory Group in 2019 provided guidelines regarding pensions in divorce cases, which included that any pension accrued prior to the marriage could be considered. In a recent case (W v H [2020]) the court took into consideration these guidelines. The judge concluded that in any case the court may need to consider equalising the pension income rather than equalising the share of the pension fund value. He also stated that it may not be appropriate in a case where they are considering an individual’s ‘needs’ to exclude pensions which have been accrued prior to the marriage.

If I receive part of my spouse’s pension as part of my divorce, will my children be able to benefit from it? If you receive a proportion of your spouse’s pension as a part of a divorce settlement, this will need to be incorporated into a pension sharing order and sent to the court. This will be sent to the pension provider once it has been approved by the court. This proportion of the pension provision will be transferred into your name and it will not be possible to transfer this into your children’s name. You should seek independent financial advice with respect to your children benefiting from your pension provisions in the future.

Income

My spouse has always gone out to work whilst I’ve stayed at home to look after the children. Will they have to maintain me after our divorce?

The court will take all circumstances into consideration as to whether you would receive any maintenance after the divorce. For example, this would include the ages of the children, whether you are able to work, your possible earning capacity and whether there are enough funds to pay any maintenance to you.

Will I be expected to go and get a job after I get divorced?

Quite possibly yes, you may be expected to get a job after having finalised your separation, if you need additional income. There are factors that would be taken into consideration which would include whether you are able to work or not because of health reasons and/or whether you are required to stay at home to look after young children which would potentially restrict your earning capacity.

How long will I have to pay my spouse spousal maintenance following our divorce?

There is no definitive answer to how long spousal maintenance will be paid, this could be for a specified period, for example until a child reaches a certain age, until your spouse cohabits with another person for a set period. There may be circumstances where spousal maintenance is payable for your lifetimes. The spousal maintenance will be incorporated within a court order, so that you know how much and how long you will be paying.  

Can I increase the maintenance I receive if I run out of money?

The Court will not automatically increase your maintenance if you have run out of money. This will be dependent on many factors, to include the terms of any financial court order between you and your ex-spouse.  

Business assets

My business started before the marriage; can my spouse still claim an entitlement to it?

The short answer is yes. The longer the marriage, the more likely it is that your business will form part of the overall assets of the marriage that is to be divided between you both It is irrelevant if your wife has not contributed towards the business within the marriage. There are options which you can consider such as offsetting your business value against other assets within the marriage. 

I want to use the money in my limited company to provide my spouse with a lump sum settlement, can I do this?

You will need to take some legal and financial advice before providing your spouse with a lump sum from your limited company. There are possible tax implications for you if you withdraw funds from your limited company.

My spouse is a director and shareholder in the business that I run. Will we need to continue to run the business together?

Not necessarily, the business asset between you both will form part of a financial settlement, and it may be that your spouse is paid a sum of money or receives other assets within the marriage as part of their share in the business (offsetting). As part of the financial agreement it would that be possible for them to sign over their shares in the business to you. Alternatively, if you both wish to continue to run the business together, then this is also possible. You would need to seek further advice in these circumstances.

 

Debts

Who takes on the marital debt following a divorce?

This will need to be considered as part of the financial division between you both. It may be possible to use some of the equity in your house or other savings to pay off any marital debt.

I took out a loan in my sole name however it was to cover joint family debts. Am I still liable for repaying this entire loan?

You will need to provide full details with respect to the loan in your sole name and you may be required to provide evidence that this loan was used to cover joint family debts. This may then need to be considered as part of the financial division between you both.

Children

My spouse and I cannot agree who the children will live with when we get divorced, what happens?

The court will only become involved with matters relating to children were there is a dispute between the parents. When a couple separate, they are encouraged to try and reach an agreement regarding the arrangements for where the children will live and how often they will see the other parent. If an agreement cannot be reached that it is open for either parent to make an application to the court for a child arrangements order. The court will then determine the arrangements for the children.

My spouse is getting remarried and wants to change my child’s name to their new one, can they do this?

If you have joint parental responsibility with your ex-spouse, then they will need to obtain your agreement to change your child’s name or they will have to obtain an order from the court. A child’s birth mother will always have parental responsibility, unless she has given the child up for adoption. A child’s biological father will have parental responsibility for the child if he is married to the birth mother. In the circumstances that the biological parents are not married, if the father is names on the birth certificate (for children registered after 1st December 2003) the father will have joint responsibility.

My ex failed to return our child following contact, and still has our child now. What should I do?

You need to seek legal advice straight away. If your ex-partner is refusing to return the children back to your care, then you may need to make an application to the court on an urgent basis for the return of the children. This application can be made without giving notice to your ex-partner and can usually be made on the same day.

My child lives with me and sees my ex for one night a week. Should my ex be paying me child maintenance? And if so, how much?

Yes, your ex-partner should be paying child maintenance. You can do a calculation using the below tool to calculate how much maintenance your ex-partner should pay, as this is based on the income and the number of nights that the children stay with them. If your ex-partner refuses to pay then you can make a claim through the child maintenance service, so that they can contact your ex-partner directly and if necessary, they will collect payment through their PAYE income. It should be noted that if you use the child maintenance service to collect child maintenance, then there is a reduction in the amount that you should receive, as this covers the costs of the child maintenance service. Usually the child maintenance service will reduce your maintenance payments by 5% and they will charge your ex-partner an additional 20% on top of the monthly maintenance.

Is there a standard pattern for how much time my children should spend with each of their parents?

There is no standard pattern that she must follow. You should consider what is in the best interests of the children them to maintain a relationship with both parents and for them to spend some quality time with both parents, if it is safe to do so. Often the children will spend alternative weekends with each parent as a minimum however, this would be based upon many factors to include whether it is possible for each parent to have the children on alternative weekends, whether they are in the local vicinity and the needs and best interests of the children.

My spouse left the house 7 weeks ago following an affair and has not bothered with our child ever since, do I still need to encourage a relationship between them?

Although this may be difficult time for you, you should always encourage a relationship between the children and their other parent, as this will also be a difficult time for the children. In time things may settle down and your spouse may wish to formalise the arrangements to see the children.

Can I take my child on holiday without my ex’s consent?

If both parents have parental responsibility, then neither parent can take the children abroad without consent of the other parent, unless you have a child arrangement order which specifies that the children lives with you. In those circumstances you can take your child on holiday abroad for up to 28 days without having to require your ex-spouse’s permission. If either parent is taking the children on holiday within the country and this is during their allocated time, then this is permitted without having to seek permission from the other parent.

Cohabiting couples

We have always lived in my partner’s house and we are now splitting up. Will I be entitled to some of the proceeds if sold?

Potentially you could make a claim against your ex-partner however, this is not straightforward, and your rights are not the same as if you were married. There are certain factors which need to be considered to include whether you have provided any financial input to the property or whether you have assisted in maintaining the property.

What is a common law marriage?

Although the term common law marriage has been used in England and Wales to refer to unmarried cohabiting couples, this term does not provide cohabiting couples any of the rights or obligations enjoyed by spouses or civil partners in a legal marriage.

Can I claim for financial provision for my child after I have split up from my partner?

You can make a claim for child maintenance from your ex-partner, which can either be agreed directly or calculated through the Child Maintenance Service. If you require further financial support for your child, then you can consider making an application under Schedule 1 of the Children Act 1989. This could provide further support to your child for a set period as the court has the power to order child maintenance, lump sums and provide housing where necessary.

Pre-nups and post-nups

I am about to get married and I want to protect my assets, how do I do this?

You can protect your assets by entering into a prenuptial agreement with your fiancé which would set out how you are protecting your assets in the event of the breakdown of your marriage. You will need to both seek independent legal advice in advance of entering into this agreement and this agreement is completed no less than one month prior to the marriage taking place.

Will a pre-nup be binding?

If certain steps have been undertaken when drawing up your prenuptial agreement, then this should be upheld by a court. It should be noted that although the court recognise prenuptial agreements, they can disregard any part of the prenuptial agreement if they consider this to be unfair or discriminatory in some circumstances. It is therefore essential that you both obtain independent legal advice before entering into a prenuptial agreement.

I now want to get divorced and we have a pre-nup from 15 years ago, can this still be enforced?

Quite possibly yes, especially if you have been reviewing your prenuptial agreement every few years. If you have not reviewed your prenuptial agreement since you entered into this 15 years ago and if your circumstances have changed significantly, for example you have had children, then it is possible that the full terms of the prenuptial agreement may not be enforceable. You should seek advice as soon as possible in these second chance is.

What are the benefits of a post-nuptial agreement?

If you were not able to enter into a prenuptial agreement prior to the marriage, then you should consider whether it is best for you to enter into a post nuptial agreement. This would provide each spouse protection with respect to their separate assets against any future claims in the event the marriage irretrievably breaks down.

I have a very wealthy background and would like to protect my family money to pass down to the next generation rather than lose it in my divorce, what is the best way to do this?

You should consider entering into a pre or post nuptial agreement. If you wish to enter into a prenuptial agreement then you will need to seek legal advice prior to getting married and you should do this at least two to three months prior to the wedding date, as the prenuptial agreement needs to be signed at least one month prior to the marriage. You will both need time to discuss the contents of the agreement with your respective legal advisers before this is finalised. If you are entering into a post nuptial agreement, then you should look to do this as soon as possible after the marriage takes place.

Miscellaneous

Can my inheritance be claimed by my spouse as part of our divorce?

There is no definitive answer and we would provide you with further advice in respect of your individual circumstances. As this may be dependent on how long ago you received your inheritance. If this inheritance was only received shortly prior to the breakdown of the marriage, you could request that this is taken out of any financial division between you both (ring fenced). If you received the inheritance many years ago, then it is possible that this will now form part of your joint assets.

What will happen to our dogs when we get divorced?

You both need to reach an agreement with regards to any pets that you have. Often, a schedule can be drawn up to arrange the time that your pets spend with you and then with your spouse. You would also need to consider how you would divide any costs associated for your dogs or any other pets.

I am in poor health, with this be considered in my divorce?

Yes, your health would be considered as part of any financial settlement between you both. The court have guidelines which it follows when dividing assets between spouses and if you are in poor health, your ‘needs’ may be more than your spouse due to your ill health. You should seek legal advice before considering any financial agreement with your spouse in these circumstances, to make sure that your future is safeguarded. 

About the author

Dal Heran

Partner

Dal has a wealth of experience in dealing with divorce cases from the Asian community and being Asian herself, has an excellent understanding of the culture.

Dal Heran

Dal has a wealth of experience in dealing with divorce cases from the Asian community and being Asian herself, has an excellent understanding of the culture.

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