The following are some of the most frequently asked questions from our clients going through a divorce.
If you have a question that is not answered below, please get in touch
To obtain a divorce in England and Wales, you must first demonstrate that your marriage has irretrievably broken down. To do this, you can use one of five facts. One of these is adultery. Read more about the grounds for divorce.
No. Under English law, adultery has a very specific meaning. It only refers to full sexual intercourse between a man and woman when at least one of them is married to someone else. No other kind of sexual activity constitutes adultery in this context. Read more about adultery.
No. As the law defines adultery as something that can only take place between a man and a woman, any sexual relations with a member of the same sex do not amount to adultery. Read more about adultery.
Yes, you must still prove that you find it intolerable to live with your husband or wife. Any sexual intercourse you have with a member of the opposite sex, irrespective of whether or not it takes place post-separation, is technically adultery until the decree absolute is finalised. See more about adultery.
No. While many believe that the unfaithful party will be treated more harshly in court, this is simply not the case. Judges understand that marital breakdown is rarely the fault of just one party, so they do not treat people more or less harshly if they have committed adultery. It will have no impact on how the matrimonial finances will be divided. It will also have no impact on decisions regarding any children you have.
Six months. If you live with your spouse as a couple for that long (or periods which together amount to more than that) after you find out about the adultery, you cannot rely on it in order to seek a divorce.
Not a good idea. You may be tempted to do so if your partner has committed adultery. You may want to name and shame and show that person up for their part in the end of your relationship. But the whole aim of the modern divorce process is to remove the emotion. Bringing in a third party into the mix adds unnecessary complication, expense and difficulty. Judges do not like when you do it. In addition, including someone else in the proceedings adds to the cost and potentially causes delay.
The financial settlement is the agreement you reach with your former spouse regarding the division of your money, property and other assets during the divorce process. The courts will set down the details of this agreement and make it into a binding ‘financial order’. The court process which deals with financial issues is called a ‘financial remedies application’. When the family courts draw up financial settlements, they take certain key factors into consideration.
• The arrangement for any children of the marriage.
• The length of the marriage.
• The specifics of each party’s finances.
Resources including income, capital and pension funds. In the vast majority of cases, the most important factor is “financial need”; in other words, need for an income, need for capital (including housing) and need for an income in retirement (pensions). Each half of the former couple will need to fill out a Form E. This is a sworn statement which sets out their future income and financial needs. Be careful to complete this accurately and carefully. Read more about divorce finances here.
When parties separate, all the matrimonial assets will need to be identified and valued before any settlement proposals can be considered. Often the largest asset is the family home and this will likely be considered irrespective of who legally owns it. The Court has the power to make orders against matrimonial assets regardless of how they are owned and by whom. In the vast majority of cases, the value of the “matrimonial home” will be shared equally no matter who bought it and no matter who paid for it. Read more about divorce and the family home here.
For a detailed breakdown of how a divorce can be funded, click here
Despite what some people assume, spousal maintenance is not a lifelong meal ticket. It is primarily a way of meeting a person’s needs but it can also be a form of compensation.
After a long marriage, income is meant to help the spouse move on with their lives. Sometimes people have given up a career in order to bring up children and there is often no way for them to go back to their previous job after so long. As a result, they will need income. The crucial questions for the courts to consider in each family’s circumstances are: how much and for how long? In every case, the Court has a duty to try and bring an end to one party’s financial dependence upon the other and to do so as soon as possible.
If the Court does decide to make an Order for one person to pay maintenance to the other, the Court has got to consider when the person receiving that maintenance will be able to adjust to that maintenance coming to an end “without undue hardship”.
In other words, the Court must not award indefinite maintenance payments unless facts of the case require it to do so.
Sometimes people want to stop paying maintenance which has previously been agreed or ordered by a court. Be warned, though. If you stop without agreement then your wife or husband can go to court and enforce the award. So if you want to reduce the amount you pay in maintenance or stop it altogether, there are ways to do so legally. It may be possible to ‘capitalise maintenance’ for example: to pay a lump sum instead of continuing payments.
Sometimes people think that they can get out of their financial obligations following a divorce if they declare bankruptcy. This is simply not the case. Claims and awards stay in play even when one party is bankrupt. However, some assets may be reduced. If your partner is facing bankruptcy, seek legal advice about how to proceed as soon as possible.
This all depends. Every country approaches divorce slightly differently so it’s important to do some research about the laws of the country you’re living in. Generally, the Courts in England and Wales are known to be more generous to the financially weaker party. Getting a divorce in the UK would guarantee the process is in English. They are also timetabled and have strict disclosure requirements. Other countries may not. When getting a divorce, proceedings need to be issued quickly because normally the country where they are issued first has jurisdiction over the entire process. Read more about jurisdiction here.
A decree absolute marks the formal end of your marriage. People often hesitate before taking this final step. They may worry about the effect it might have on their finances. Whether or not it will affect your financial settlement is the key question. It’s unlikely, but if your spouse dies between the decree nisi and decree absolute and you don’t have a financial settlement in place then you would no longer be his or her widow or widower.
As a result, you could lose out on some automatic benefits that you would have received had you still been married – for example: a widow or widower’s pension or state benefits. If you’re not going to automatically lose out on benefits, or the financial gain will outweigh any benefits lost, then there is no reason not to go ahead. But remember to seek legal advice if you’re unsure. Care must always be taken as to when to apply for decree absolute if pensions are going to be shared. Read more about the decree absolute here.