Common Questions in Family Law
Frequently Asked Questions About Divorce
For most individuals, the first point of resource when you need a question answered is to search Google. The internet provides a plethora of information, but it can often be confusing and conflicting and in some cases such as financial disputes and child arrangements, there is not a “one size fits all” approach. In this article, I aim to answer some of the most common questions asked in family matters.
Is there such thing as a “quickie divorce”?
Divorce petitions can now be issued online, and the process is undoubtedly faster than paper applications with turnaround times being approximately 12 weeks from start to finish. Paper applications can take up to 6 months to process so although neither process is a “quickie,” provided the divorce is uncontested and both parties deal with their role in the divorce promptly, the matter can be dealt with within a reasonable amount of time. Unfortunately, parties are at the behest of the Court’s administrative system, which has been overwhelmed and under-resourced during the pandemic.
Do I have to wait 2 years before filing for divorce?
No. Currently, there is one ground for divorce: the marriage has to be irretrievably broken down. The petitioner (i.e. the person filing for divorce) then has to support this by one of five facts: adultery, unreasonable behaviour, 2 years separation with consent, desertion or 5 years separation without consent. More often, couples simply drift apart during the course of a marriage and having to provide a reason for a divorce can cause unnecessary tension to an already difficult time. This is all set to change as the Divorce, Dissolution and Separation Bill has received Royal Assent ending the “blame game” in divorces and is set to become law this autumn.
Does it matter who files for divorce?
Either party can petition for divorce. The only advantage to be the person filing for divorce is they have “control” over the process; for example, if the Respondent does not acknowledge receipt of the divorce petition, the Petition has recourse to the Court to proceed to the next stage of the divorce.
Do mothers have greater rights than fathers over children?
Provided fathers have parental responsibility of the children, both parents have equal rights and responsibilities for the children. In child arrangement cases, the Court’s paramount consideration is the welfare of the child and in making decisions, the Court is guided by the welfare checklist. These include factors such as the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding); the child's physical, emotional and educational needs; the likely effect of any change upon the child; the child’s age, sex and background; any harm the child has suffered or is at risk of suffering; how capable each parent is in meeting those needs; and the range of powers available to the Court.
Do I have to initiate Court proceedings to deal with the financial issues upon divorce?
Where possible, the Family Team at Parfitt Cresswell will advise clients to deal with matters in an amicable and cost-effective way. Court proceedings are stressful, lengthy and costly however, when negotiations breakdown and an agreement cannot be reached, there may be no choice but to apply to the Court. Details of costs and how a Court would approach a case will provided to the client to enable them to make an informed decision.
Are marital assets always split 50/50?
The starting point for financial division begins with a 50/50 split, however, this division is adjusted according to each parties’ needs i.e. the need to have a roof over your head known as capital needs and the need to meet reasonable monthly outgoings, known as income needs. The Court uses factors set out in section 25 of the Matrimonial Causes Act 1973, which include the length of the marriage, the age of the parties, the resources of the marriage, contributions to the marriage, conduct and earning capacity to determine the fairest way to divide assets. This can be complex and legal advice should be sought.
I did not work throughout the marriage; will I walk away without receiving a penny from the marital assets?
Contributions is defined under section 25(2)(f) of the Matrimonial Causes Act 1973 as
“the contributions which each of the parties has 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 therefore considers being a homemaker and raising children as an equal contribution to financially providing for a family. In assessing entitlement such as spousal maintenance, division of capital and pension provision, the Court will revert to the parties’ needs as detailed above
Can I obtain a divorce without sorting the finances?
Yes, you can however, irrespective of the size of the assets, it is always advisable to resolve the financial issues by having a Consent Order. This is a legally binding document designed to protect present and future assets irrespective of whether these assets are large or modest. You never know when your fortunes will change, and it is a good idea to protect that asset without the worry that your former spouse makes a claim on it. Without a Consent Order, you will always remain open to financial proceedings even after the Decree Absolute is granted.
Do I have to face my abuser if I apply for an injunction?
An application to the Court for an injunction for a non-molestation order and/or occupation order can be made without notice to the perpetrator and for this, a victim will not need to face their abuser in Court. The Court can make provision such as separate waiting rooms for subsequent hearings, however, there is to a major overhaul in the law by way of the Domestic Abuse Bill. This important piece of legislation is designed to protect victims of domestic abuse with provisions such as protective screens in Court, allowing Judges greater powers to prevent abusive ex-partners from repeatedly dragging their victims back to court and the possibility of considering criminal and family matters in parallel to provide greater support for victims.
The Family Department at Parfitt Cresswell offer a complimentary initial, no-obligations consultation so if you require further advice, please do not hesitate to contact us on 0800 999 4437 or email email@example.com quoting reference webfam1404521