Your divorce questions answered

 

Q. I got married two months ago and realise I have made a dreadful mistake. Can I start divorce proceedings immediately?

A No. You have to be married for at least 12 months before being allowed to start proceedings for divorce. However, you can apply for a judicial separation.

Q. Will I need to go to Court for a Divorce?

A No. Provided the divorce is undefended (they almost always are) and you’ve agreed financial arrangements, everything is carried out on paper through the post.

Q. We get on well and we have agreed everything, can you act for both of us?

A No. Our professional rules prevent this. However, you might like to consider Family Mediation in which a professional mediator works with you both and your respective solicitors simply ensure that any agreement you reach together is in your best interests.

Q. I am reluctant to start divorce proceedings because we still get on very well. I am worried that if my wife goes to see a solicitor, the solicitor will stir up trouble and we will end up fighting. What can we do to prevent this?

A You and your wife should each engage a solicitor who practices Collaborative Law. Using this approach, you will work together as a team with your respective solicitors in non-confrontational meetings to negotiate an amicable agreement face-to-face. Alternatively if you do not wish to follow the collaborative process you may wish to ensure your solicitor is a member of Resolution.

Q. My husband/wife will never agree, he/she will just throw the divorce papers in the bin.

A Don’t worry. It may take longer to get a divorce but we will get there in the end. If the petition is based on unreasonable behaviour we can arrange for the Court Bailiff or for a Private Enquiry Agent to serve the papers on him/her personally. Provided we can prove the papers have been served and provided your partner does not “Answer”, ie file a Defence with the Court, we can proceed with your Petition.

Q. What exactly does “adultery” mean?

A Adultery means sexual intercourse with someone of the opposite sex. Any other type of sexual activity can be referred to in an unreasonable behaviour petition but it would not be adultery.

Q. My wife has disappeared. I haven’t seen her for 7 years and I don’t know her address. Can I divorce her anyway?

A Yes, but only if the Court is satisfied you have made every effort to trace your wife. We can help you try to trace her through a Tracing Agency.

Q. I have just received a divorce petition. It’s a pack of lies. I want to defend, am I wasting my time?

A This is a difficult one but in practice defended divorces are almost unheard of. They are extremely expensive because they involve at least one preliminary hearing at court plus a full contested hearing where you and any witnesses would have to give evidence.

If you are happy to pay, you should allow at least £2,500 depending on the number of allegations and the time estimate for the main hearing. In addition you are likely to have to pay a barrister’s fees.

Divorce Petitions based on unreasonable behaviour usually contain several different allegations. Most people (even in happy marriages) are likely to do things which their partner will consider “unreasonable” at some point. You may persuade the Judge that some of the allegations are wrong but you are unlikely to be able to defend every single allegation. If your spouse succeeds on just one of them, chances are he/she will get the divorce.

Even if you win, you will still be married to someone who definitely does not want to be married to you. However, it is far more likely that you would lose, though there are exceptions, for example for religious reasons.

And it is highly unusual for financial issues and child care arrangements to be affected by the grounds for the divorce.


Q. If I don’t defend a divorce petition, what else can I do to make sure my side is known to the Court?

A We can say in the “Acknowledgment of Service” that while you are not defending, you do not accept the allegations made. We can also file a statement with the Court setting out your side of the story. If any of the allegations re-appear in other parts of the proceedings, we can deal with them in detail when relevant. For example, financial conduct may be relevant to the financial proceedings and may also have appeared in the divorce petition. The cost effective place to deal with this is in the context of the financial proceedings, not the divorce.

Q. I need a divorce but I am not eligible for legal aid and I cannot afford to pay a solicitor. Can I deal with the divorce myself?

A Yes, certainly. If your divorce is based on adultery or separation and your husband or wife agrees to a divorce, there is no reason why you should not get in touch with your local court and deal with the divorce on a “DIY” basis. If your divorce is based on unreasonable behaviour, you may want a solicitor’s advice about what to include in the petition before dealing with the rest of the divorce yourself.

In either case, you will still have to pay court fees (£345) but the cost of obtaining your divorce will be considerably reduced.

However, if you or your spouse own a house or other assets, or if either of you belongs to a pension scheme, you really need an expert lawyer to draw up your Ancillary Relief or Financial order. We do not recommend that you attempt this highly specialised work yourself.


Q. What is Ancillary Relief?

A Also known as Financial Relief or Financial Remedy, this is the financial and property proceedings ancillary to divorce. See Money Matters for more details

Q. How does the Court decide who gets what?

A There is no hard and fast rule. The Court will apply factors including the length of your marriage, your age, income, earning capacity, resources (including pensions) and those of your ex. The interests of children under the age of 16 always come first and providing accommodation for them is a priority.