Family Q&A

Your legal questions

answered...

Q. Divorce - where do I start?

If you feel that your marriage has broken down and that there is absolutely no chance of reconciliation then you should consider entering into Divorce Proceedings. Married couples must apply to the Court to obtain a divorce.

Q. Divorce - 5 facts

If you wish to divorce you must show to the Court that there has been an irretrievable breakdown in the marriage and thereafter your petition may be brought based upon one of the following five facts;

  • Unreasonable behaviour of your spouse
  • Adultery committed by your spouse
  • Separation for a period of two years where you both consent
  • Separation for a period of five years
  • Desertion

Q. Divorce - Basic procedure

If neither party wants to blame the other party then the couple can wait until they have lived separately or apart for at least two years and they both agree to the divorce.

If one party does not agree, then the person who wants the divorce may have to wait until they have lived separately and apart for a minimum of five years before they can divorce the other person, without requiring their agreement.

Alternatively, you can petition for divorce based on:

  • Unreasonable behaviour
  • Adultery
  • Or desertion

Once you have decided the ground upon which you want to bring your Divorce Proceedings, we would begin by writing to the other party (who would become known as the Respondent) to inform them of your intention to petition for divorce. From that point we would thereafter prepare a petition for divorce based upon your instructions and this would be filed at Court along with a document called statement of arrangements for the children, if appropriate, which would set out the agreement that has been reached with regard to the children to include where they will live and what contact the non resident parent will have with the children.

The Court would then issue this document and serve it upon the Respondent.

The Respondent would then have to complete a document called an acknowledgement of service form and return this to the Court within 7 days. Once the Court has received a copy of the acknowledgement of service they will make a copy available to us and at that point, we will be in a position to apply for the Conditional Order for divorce, the Decree Nisi. At this stage the Judge will decide if you have sufficiently proved your case for divorce and if there adequate arrangements in place for the children and if the Court need to exercise their powers under the Children Act 1989. The Court will set a date for pronouncement of the Decree Nisi. You do not have to attend this hearing. Once the Court has pronounced the Decree Nisi we will be in a position to apply for your Decree Nisi to be made Absolute six weeks and one day from that date.

Once we apply for your Decree Absolute the Court will grant this if satisfied to do so and from that point you are officially divorced.

Q. Matrimonial Finances – What is the best course of action for me?

Financial matters in Family Law are the issues involved in the division of your assets, income and liabilities after separation. They were formerly referred to as “ancillary relief.”

Property includes many things; it is not just properties or money. If you have any savings, a family business, a trust, investments, an entitlement to be paid or a pension entitlement it is likely to be defined as property.

Property also includes money that you owe and any other liabilities of the relationship. All property will be included for consideration in the financial distribution after separation. However, some property may be ring fenced in certain circumstances, this is a potentially complex area so you would be best to consult with us before deciding what should and what should not be included in the matrimonial pot.

The best course of action for you will depend upon the relationship that you have with your spouse. If you are happy to do so we would recommend that you attend mediation to try and reach an amicable arrangement together. Otherwise, the starting point is for us to negotiate a settlement on your behalf. Failing this, and as an absolute last resort, you may need to seek the assistance of the Court, to enable the court to decide on how the matrimonial assets should be distributed on divorce. In any event, we would make sure that you have a final financial order that is approved by the Court setting out how you have divided your property. If you do not have this order in place, you could be in for a surprise, as you and your spouse are leaving yourselves open to future financial claims being made against one another, even following decree absolute.

The Court will take a series of factors into consideration, when deciding how to divide the matrimonial assets, and these are known as section 25 factors (The Matrimonial Causes Act 1979). It is important to note that if one of you has been the breadwinner going out to work and the other has been the homemaker, your contributions are considered equal, as the courts do not discriminate between the homemaker and the person who goes out to work, as both contributions are of the same importance.

Q. Finances – The Facts

The factors taken into account when dividing out the matrimonial ‘pot’ are set out in section 25 of the Matrimonial Causes Act 1973. They take into account each parties situation and include the following;

  • The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity, any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire.
  • The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The age of each party to the marriage and the duration of the marriage.
  • The contributions which each of the parties have made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.

The Court will also have regard to all the circumstances in the case which means that a Judge would take into account anything else that he or she feels is relevant.

Q. Ante-nuptial (“Pre-nuptial”) Agreements

A Pre-nuptial agreement is an agreement which is entered into prior to marriage and allows a couple to plan financially should their marriage breakdown.

The key reason that a couple may decide to enter into a pre-nuptial agreement is to save time and stress arguing over property should the marriage break down in the future. It should be noted however that a pre-nuptial agreement at present is not legally binding and the Court will consider the overall needs, income and resources of the parties before making a decision. If a child has been born within the marriage after the pre-nuptial agreement has been entered into it is likely to also cause the Court to move away from it when considering the division of property.

A post-nuptial agreement is entered into after marriage, while a couple are still together and allows a couple to plan financially should their marriage subsequently breakdown. A post-nuptial agreement carries more weight as the price of entering into a marriage is seen to be extracted.

No person wants to believe that their marriage will end in divorce however such an agreement is a good idea and can save time, expense and animosity in the future.

If the answer is “Yes” to any of the following scenarios, a Pre-nuptial agreement could be right for you.

  • I am thinking of getting married and want to protect my property in case it doesn’t work out.
  • I am about to marry for the second time and want to limit any potential claims on the settlement I received from my first marriage if things go wrong again.
  • I am a widower thinking of marrying again. I want to protect my assets in case things go wrong.
  • I am about to marry but worry that if things go wrong we could end up in a costly and lengthy argument about “who gets what”
  • I am about to marry for the second time but want to protect my assets to ensure I have something to leave in my will to the children from my first marriage if my new relationship breaks down.

There are many circumstances where a couple might believe that a pre-nuptial or post-nuptial agreement should be entered into. For example;

  • To provide certainty regarding the outcome if separation occurs
  • To avoid arguments
  • To preserve the ownership of existing property but shall share all jointly acquired assets
  • To preserve an existing or anticipated inheritance
  • Where one party has much greater wealth than the other

Q. Availability of Legal Aid

We offer Legal Aid for those that are financially eligible and can meet the revised criteria that have been set out by the Legal Aid Agency. We appreciate that the criteria is very strict following changes in the law in April 2013. If you are eligible, we will be able to assist you under Legal Help for straight forward family law matters or if necessary we can apply for a Legal Aid Certificate for you and should this be successfully granted we can work for you and on your behalf. However, not everyone is eligible under the new system. Due to this, we at this firm have pledged to assist those who would have been eligible under the old system at the same Legal Aid rate, by offering reduced rates in line with legal aid rates, for those who are on low incomes and have been assessed by our team, as meeting the low income threshold criteria.

Q. Contact resolving disputes

The law when dealing with children matters and arrangements after separation is set out by the Children Act 1989. The overarching principle is that the welfare of the children is the paramount concern. You will probably have to compromise on arrangements for your children and you should try to be as flexible as possible. You should try to negotiate with your ex partner however if this is not possible we will correspond on your behalf. Often, important decisions need to be made about the children’s future and in all circumstances parents will have to decide where the children are going to live and how contact arrangements will work.

If your matters regarding children end up in Court then we must always try to keep a sense of proportion about what is happening. We must compromise and agree to points that are in the children’s best interest.

The Court will take into account several factors, collectively known as The Welfare Checklist when making a decision on a children application. The Welfare Checklist includes;

  • The ascertainable wishes and feelings of the children concerned, in light of their age and understanding
  • Their physical, emotional and educational needs
  • The likely effect on the children of any change in their circumstances
  • Their age, sex, background and any characteristic of theirs which the court considers relevant
  • Any harm which they have suffered or are at risk of suffering
  • How capable each of the parties and any other person in relation to whom the court considers relevant, is of meeting their needs
  • The range of different orders available to the court
  • It is usually essential to have an element of cooperation to make the arrangements work and it is important to realise that your wishes and your children’s wishes may sometimes differ.

    Some issues can never be compromised however such as physical or emotional safety of your children. Keep in mind that the best interests of the children must come first and if they are at the risk of harm then we will work to ensure that they remain protected.

    Should it become necessary to make an application to the Court, the four areas that the Court can consider are;

    • Where the child will live. This is often referred to as a Residence Order but the law changed in April 2014, therefore this is now known as a Child Arrangement Order as to where the children will live.
    • What type of contact the non resident parent will have with the child. This is often referred to as a Contact Order or a Child Arrangement Order for contact with the non-resident parent.
    • Specific Issue Orders deal with specific issues relating to the child that needs to be addressed.
    • Prohibited Steps Orders prohibit one or perhaps both parents from taking certain actions in relation to the child.

    These are collectively known as Section 8 Orders and usually last until the child reaches 16, although can last until the child’s eighteenth birthday where there are exceptional circumstances.

Q. Domestic abuse - How can I protect myself?

Abuse takes many forms. It can be physical, emotional, financial, and sexual or a combination of any or all of these. No form of abuse is acceptable and if you are a victim of violence or have a fear of violence occurring then you should contact us and you should report this to the police. Any allegations against your ex partner will need to be proved and therefore by informing police you are allowing them to take into account what has occurred and we will be able to refer to a crime reference number as necessary.

There are organisations that provide support and assistance to victims of abuse or violence in the local area and we are in a position to provide you with information in respect of these organisations in line with your specific needs.

If you have been abused in any way we would recommend that you make a diary of the incidents and whether anybody else was present. By documenting this evidence this will prove very helpful as your matter progresses. If you have suffered injury you must consult a doctor and we will then be in a position to ask for a report in the future. We would also recommend that you obtain photographic evidence where possible. We know this may be difficult to do but you will be extremely glad that you did in the future.

If you are in an abusive household you must leave the home where the abuse is occurring. You should talk to a Solicitor, the police and family or friends for support. After you have separated yourself from the abusive place we will be able to assist you should the threat or intimidation continue. We may apply for an injunction against your ex partner, this is known as a Non-Molestation Order. A Non-Molestation Order is an order, which forbids your partner whether by by himself, or instructing another; from using or threatening violence towards you, from contacting you, can include an exclusion zone, so as to prevent them from attending a certain distance of your home or workplace. The order will take effect from when it served on your partner and breach of this order is automatically a criminal offence and the perpetrator can be sent to prison, for up to 5 years or be subject to a fine or both.

We would advise you as to whether we feel that such an Order is appropriate in your circumstances.

If you feel that you are not in a position to leave the home, whether this is due to financial reasons or because it is the roof over your children’s head, then we may be in a position to apply for an Occupation Order. An Occupation Order determines who will remain in the family home and who must leave. An Occupation Order will also determine who is to meet the costs of maintaining the home.