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When can divorce proceedings start?
Any person who has been married for 1 year can start a Divorce
in England and Wales.
Can I get a Divorce in the UK if I was
married abroad or my spouse is abroad?
The conditions necessary to start a Divorce in England and
Wales is one of the following: -
- both parties are habitually resident in England and Wales
- both parties were last jointly resident here and one still
resides here
- the other spouse is habitually resident here
- The person starting the proceedings is habitually resident
here and has been for the previous 12 months
- Both parties are domiciled here.
Prior to the 12 months marriage parties can petition for Judicial
Separation and then divorce after 12 months.
On what grounds can a Divorce be started?
The only ground is irretrievable breakdown of marriage which
is proved by one of 5 facts (or grounds).
Adultery - this means sexual intercourse between your
spouse and a member of the opposite sex. You must also find
it intolerable to live with your spouse though not necessarily
because of the adultery
Unreasonable behaviour - this means behaviour by your
spouse which is such that you could not reasonably be expected
to live with them. Behaviour does not have to be serious such
as physical assaults and can include a variety of different
of 'minor' which together is causing a breakdown in the relationship.
2 years separation - where you you and your spouse
have lived apart for a period of two years after you concluded
that the marriage was at an end and your spouse consents to
a decree being made.
2 years desertion - where your spouse has left you
or forced you by their behaviour to leave and you must have
been apart for a period of 2 years.
5 years separation - separation of 5 years and there
is no requirement for consent here but there are special provisions
to prevent a decree being granted until the finances of the
parties have been resolved.
What if I don't have an address for my
spouse?
It is still possible to divorce. You will need to know that
reasonable enquiries have been made to try and an application
can be made for service by advertisement or the Court may
allow the requirement can be dispensed if there is reason
to believe that the spouse is no longer in the UK.
Can I withdraw from a divorce once I commenced
it?
Yes. The Divorce is granted in two stages, decree nisi and
decree absolute. At any time before the decree nisi is made
it is possible to withdraw the Divorce Petition with the consent
of the Court or the other party. Alternatively, even if you
do not apply if you are the Petitioner and decide not to take
any further steps and apply for the decree nisi the other
party cannot progress the case and the Petition is effectively
redundant.
However, once the decree nisi is made if you as the Petitioner
do not apply for the final decree absolute after six weeks
then the other spouse can apply for the decree absolute after
a further 3 months. This is usually a formality and the Court
will not normally prevent the decree absolute being made.
Is it against my interest to move out
of the matrimonial before my case is completed?
This will not affect the legal issues between the parties
and the financial settlement. However leaving the property
can make it difficult to obtain belongings or keep an eye
on the upkeep of the property.
I have caused the breakdown of the marriage
but my spouse refuses to divorce me. What can I do if I don't
have grounds to divorce my spouse?
You cannot force your spouse to Petition for divorce on the
ground of your behaviour or adultery. However, you can Petition
on their unreasonable behaviour as in most marriages it is
possible to cite behaviour which is unreasonable. Whilst your
spouse may contest it this is in practice a remote possibility
given the costs and delay involved and the fact that the a
divorce is likely to be granted at the end of the day. The
Court takes the view that if one party to the marriage has
taken the step of starting a divorce the marriage will have
broken down irretrievably. Telling your spouse that you could
petition against their behaviour if they don't do so on your
behaviour (or adultery) is often sufficient to get them to
act.
If your spouse does start the divorce and halts the case
before the grant of the decree nisi there is little you can
do other than petition for divorce yourself.
Will I have to attend Court for the Divorce?
These days in the vast majority of cases a Divorce can be
obtained without attending a Court - where the divorce is
uncontested. However you would have to attend Court for hearings
relating to the financial claim and children if an agreement
cannot be reached. The hearings are conducted in private and
members of the public are not allowed into the court.
What if my Spouse who has issued the Divorce
does not apply for the Decree absolute ?
It is possible for you as a Respondent to apply after 3 months
after the first date that your spouse could have applied.
Usually the application is granted, however, the Court has
power to refuse such an application if the grant of the decree
absolute may result in some disadvantage such as loss of a
pension right or the conclusion of a financial claim.
Why do I have to disclose assets that
my spouse is not making a claim upon?
It is necessary for the court to have full and frank disclosure
of both parties assets in order to dispose of a case fairly.
This requirement also applies during the process of negotiations
between solicitors even if a case is close to settling. If
an asset is withheld and is subsequently discovered it can
lead to as settlement be reopened on the basis that the settlement
terms would not have been agreed or decided by the Court if
the asset had been disclosed. Costs can be awarded against
the party who withheld asset.
How much does it cost and who pays for
the costs?
See Divorce costs
For Divorce which is not contested a fixed fee is
quoted which is usually small relative to the costs of financial
claims and child disputes. Costs will depend upon the extent
to which issues are contested or how complex they are. If
the divorce is on the grounds of adultery or unreasonable
behaviour the costs of the Petitioner would normally be paid
by the Respondent, but sometimes it can be agreed that both
parties pay their own costs. If separation grounds are used
each party will normally pay their own costs.
For Financial Claims charges are made on a time spent
basis. It is not possible to generalise about who will pay
the costs as it is not always clear who is the winner or looser-
the issues are usually more complex. As a broad rule however,
if one party has conducted the case unreasonably or has failed
to negotiate properly, it is more likely at the end of the
day that this party will be required to meet some or all of
the costs of the other side. Most cases eventually settle
before a hearing and in that event it is often the case that
each party will pay their own costs. You should not therefore
expect that your spouse will end up paying your costs for
obstructing or delaying the proceedings.
What happens if my spouse and I attempt
a reconciliation but fail?
The law allows parties to attempt a reconciliation for up
to a period of 6 months (including any separate periods totalling
6 months) . This means hat it will not affect the original
grounds for Divorce. For example, after the breakdown caused
by unreasonable conduct, if the parties try to reconcile for
a period of up to 6months and fail the same unreasonable conduct
can still be used as a grounds for divorce.
Similarly, if the parties have been separated for 2 years
and have two attempts each lasting 3 months to reconcile which
then fail, they do not need to be separated for a further
2 years to divorce and can rely on the original 2 year period
of separation.
Do I need to make Will when my marriage
breaks down?
Yes. Even though you may have started Divorce proceedings
until the final decree absolute your spouse is still recognised
as your spouse under the law and as such will be entitled
to your estate on your death under the laws of intestacy or
under your will if you have made one. It is therefore essential
to make a will or change an existing will to exclude the possibility
of your spouse inheriting your estate (presuming that is what
you would wish) in the event of your death before the grant
of a decree absolute.
You should also consider changing any nominations to pension
schemes or insurance policies or benefits for your spouse.
It is also important to consider the implications for jointly
held property such as the matrimonial home. Usually married
couples will be holding this as 'joint tenant'. This means
that the property passes to the surviving spouse automatically
under laws of survivorship rather than under a will. There,
it is important that the 'joint tenancy' is separated so that
each party holds it in 50/50 shares so that one the death
of one the deceased's will can provide who should get his/her
half share rather than it pass to the survivor automatically.
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