Frequently Asked Questions
With any legal process there are lots of questions but matters of relationships and in particular, divorce, there are many more. We have listed some of the more common and challenging questions that many people ask us;
- How do I start a divorce?
You can start a divorce by preparing a divorce petition and sending it to your local family court along with your marriage certificate and the correct court fee. The divorce petition needs to be completed accurately based on one of the five facts upon which divorce proceedings can be started. We have prepared a flow chart on our website which sets out the procedure for a divorce which you may find helpful.
- I have received divorce papers from the Court in the post, what shall I do?
Firstly, don't panic! You will have received a copy of the divorce petition and an acknowledgment of service form which has to be completed and returned to the Court within a certain period of time. Before returning the acknowledgment form it is important that you obtain legal advice and understand certain important sections of the petition and what options are available to you.
- I want to separate but I don't want to divorce, what are my options?
You may have taken the decision not to divorce based on religious or cultural reasons. If so, you can apply for a Judicial Separation through a procedure similar to a divorce. Obtaining a Judicial Separation means that you are no longer obliged to live together however does not ultimately bring the marriage to an end. You will still also be able to request the Court to approve a financial settlement that you may reach with your spouse.
- Can I change the locks to the family home?
If you own the family home together with your spouse or partner you cannot stop them from entering the property except by getting a court order. The locks on the property should not be changed and if they are, you must provide them with a key. However, if you are being subjected to violent or aggressive behaviour from your partner or spouse you may be in a position to apply to the Court for an Order to remove them from the property.
- What are the consequences if I were to move out of the family home?
This is unlikely to have an impact on financial issues, however it is important that you seek legal advice before taking such steps. By moving out of the property you may no longer have access to your personal belongings e.g. important financial documents and there may be a risk that your spouse may not cooperate which will prolong the divorce.
- Are pre-nuptial agreements legally binding?
Pre-nuptial agreements are becoming increasingly common and although they are not yet legally enforceable in the UK, the Courts may take them into consideration. It is important for both of you to obtain independent legal advice before signing the agreement, to provide full information on your finances and to enter into the agreement in good time before the wedding.
- What is a clean break order?
Obtaining a divorce will not cut the financial ties between you and your spouse. Having a Solicitor draw up a clean break consent order will ensure that both of you cannot make a financial claim against each other in the future. A clean break order will prevent your spouse from making a claim for a share in your increased future income, inheritance or lottery win. However, there are certain situations where a Court would not approve a clean break order. Please refer to our Blog, Divorce and Clean Break, for further information.
- What will I have to pay in child maintenance?
If you and your partner are unable to reach an agreement on financial support for your child’s living costs, a calculation can be carried out by the Child Maintenance Service. The link below will take you to the Government website where you will find a child maintenance calculator. How much you will pay will depend on how many children you have and whether they stay overnight with you during the week.
- My husband/wife has threatened to stop paying the mortgage and bills, what can I do?
If the mortgage is in both your names you are both responsible for ensuring that the mortgage is paid. If the mortgage is not paid there is a risk that your lender may begin legal proceedings to take back the property. If your spouse stops paying the mortgage and the bills we can advise you on making an application to the Court for maintenance which will cover mortgage payments and other outgoings on the family home until a financial agreement is reached between you.
- I am concerned that my spouse may sell property and other assets before we have reached a financial agreement.
If you have concerns that your spouse may sell or conceal property and other assets then you will need to obtain legal advice as soon as possible and act quickly. We can assist you with an application to the Court for an Injunction to prevent your spouse from disposing of assets both in the UK and abroad.
- The family home is in my spouse’s sole name, will I be entitled to a share if we decide to separate?
If the family home is in your spouse’s name, you will be reassured to know that you have matrimonial home rights in the property and may be entitled to a share in the property. If you feel that your marriage is breaking down it is important to seek legal advice in good time to ensure that your right to remain living in the property is protected and to safeguard any share you may have in the property. Please contact us for further information and to assist you in preparing the relevant application.
- My son and daughter in-law borrowed a sum of money from me to purchase a property and now they are separating. What can I do to ensure that I receive this money back?
In this situation, if divorce proceedings have been started, you can make an application to the Court for permission to join in the proceedings. This will ensure that your position in relation to the property will be taken into consideration when dividing the assets between your son and daughter in-law. It is also important that you have separate legal representation to ensure you receive independent advice.
- My partner is moving into my property, are there any legal implications I need to know?
If you considering living with your partner and are not married, you may want to consider entering into a cohabitation agreement. This is a contract setting out details of how your property and home is owned, how you will manage day-to-day finances and how your assets, contents and savings will be divided in the event that your relationship breaks down. Such an agreement is not strictly speaking legally binding however it will clearly set out your intentions in the event that you separate. It is also important for both of you to obtain independent legal advice before entering into a cohabitation agreement.
- I am living in a property owned by my partner, am I entitled to anything should the relationship break down?
In this situation you may be entitled to a share in the property. This will depend on a number of factors including your intentions at the time the property was purchased. This is a complex area of law and the outcome of each case will depend on the particular facts. Please contact us for further information and advice.
- I am being threatened by my partner/spouse, what options are available to me?
You can apply for an injunction called a Non-Molestation Order. This prevents your partner or spouse from using or threatening violence against you, intimidating, harassing or pestering you. It can also cover abusive telephone calls, text messages and other communications. In order to apply for a Non-Molestation Order you must be related or associated with each other e.g. spouse, cohabiting or have a child together. These orders usually last for one year.
- Can I make an application to remove my partner/ spouse from the home?
If you do not feel safe in your home or you have been subjected to violence you can apply to the Court for an Occupation Order. An Occupation Order sets out who can live in the family home and can exclude a person from their home for a period of 6- 12 months. These orders will only be granted in exceptional circumstances and only if certain criteria are met. If you are seeking to apply for an Occupation Order please contact us as soon as possible to advise you on your options and the procedure in more detail.
- What is the procedure for applying for an Injunction?
You can apply for an Injunction by submitting the relevant application to the Court together with a detailed statement setting out your reasons wanting an Order. You can make an application by giving notice to your ex-partner or if you fear that you are in immediate danger you can apply for an emergency order without them being present at Court. In this situation the Court will arrange a further hearing in order to give your ex-partner an opportunity to respond.
- What happens if my partner breaks the Injunction?
If your ex-partner breaches the Injunction they can be arrested, charged and brought before a Criminal Court. A breach of a Non-Molestation Order is punishable by up to five years imprisonment.
- My ex-partner is stopping me from seeing my children, what can I do?
If your ex-spouse or partner is stopping you from seeing your child you can make an application to the Court for a Child Arrangements Order. A Child Arrangements Order can deal with where your child should live, when your child spends time with each parent and when and what other type of contact should take place. However, before an application is made to the Court you will need to attend a Mediation Assessment and Information Meeting (MIAM). We can provide you with details of your local mediation service.
- Do I have parental responsibility for my child?
Parental responsibility refers to all the rights, duties, powers and responsibilities that a parent has for a child. Having parental responsibility enables you to be consulted in all major decisions regarding your child e.g. education matters, religion and medical treatment. A mother will automatically have parental responsibility for a child. A father will have parental responsibility if he is married to the mother or is registered on the child’s birth certificate which must have taken place after 1st December 2003. However, there are ways to obtain parental responsibility which we can advise you on e.g. re-registering the child’s birth, entering into a parental responsibility agreement or applying to the Court for a parental responsibility order.
- Can I take my child on holiday abroad if the other parent does not agree?
Unless you have a Child Arrangements Order stating that your child shall live with you, you must obtain the agreement of the other parent before taking your child outside of England & Wales. If you have a Child Arrangements Order setting out that your child is to live with you, then you can take your child abroad for a period of up to 28 days. If the other parent does not agree then we can help you in making an application to the Court for permission to remove your child from the jurisdiction for the purpose of a holiday.
- Can I move abroad with my child?
You cannot relocate abroad with your child if the other parent does not agree. In this situation you will need to make an application to the Court for a relocation order. If you are intending to move abroad please contact us for further advice on the practical steps you would need to take in order to make an application for a relocation order. Alternatively, if you have concerns that your former partner may be planning to relocate abroad and you do not agree to this, contact us for further advice.