Divorce - Frequently Asked Questions

Below are some of the commonly asked questions in relation to the process of divorce:

My spouse and I are considering separation. What should we do?

You may first wish to consider attending counselling together to establish whether there is any way of overcoming the difficulties which have arisen. If there is no way forward for you as a couple, there are a variety of options available to you to assist you through the separation process.

How and when do I formalise my separation?

You do not have to. If you are living apart, it is a fact you are living apart. You should consider taking tax advice before separating to identify the best date in which tax year to separate to protect the family’s tax position. It is quite possible for you to make arrangements to live apart in the short term, without formally recording your separation. In fact, it is wise to do so in some circumstances e.g. to reduce Capital Gains Tax.

If you feel the need to formalise the arrangements, you can either enter into a Contract, a Separation Agreement, or a Post-Nuptial Agreement, or issue divorce proceedings.

You need to issue divorce proceedings if you are unable to agree the division of finances, or wish to ensure that future claims, the one against the other, are dismissed e.g. a clean break, or if you wish to record the financial arrangement so that it is binding and final. Also, it is only possible to share Pensions by way of a Court Order.

Keep it simple by considering the options available to you to deal with your financial outcome and to explore arrangements for the children, and then formalise the separation or divorce when you have found the answers.

We’ve only been married for 6 months. Can we get divorced?

No. You are only able to issue divorce proceedings after you have been married for 1 year. However, if you have children together or you have joint property you should consider how these issues may be resolved.

How long does it take to get a divorce?

It will usually take between 3 and 6 months to obtain a divorce but if there are, for example, complex financial issues to be resolved, it could take considerably longer.

What are the grounds for divorce?

There is only one ground for divorce and that is that the marriage has irretrievably broken down. This must then be proved by one of five facts:

  1. The other party has committed adultery and the Petitioner (the person bringing the divorce) finds it intolerable to live with them;
  2. The other person has behaved in such a way that the Petitioner cannot reasonably be expected to live with them (known as ‘unreasonable behaviour’);
  3. The other party has deserted the Petitioner for a continuous period of at least 2 years;
  4. The parties to the marriage have lived apart for a continuous period of at least 2 years and the other party consents to a divorce being granted;
  5. The parties have lived apart for a continuous period of at least 5 years (no consent required).
What will happen to the children on divorce?

You should try to discuss with one another at the earliest stages of separation what arrangements you believe should be made for the care of the children. You should also ensure that you try and broach the issue of your separation with the children together so that the children see that you remain a united front when it comes to them, despite your separation. You can also attend mediation to discuss arrangements together in a child focused way. The Court will not make any Orders automatically on your divorce concerning the children but, if it is not possible to resolve matters between yourselves, it is possible to make an application to the Court in relation to the living arrangements for the children. (See also Children Matters – Frequently Asked Questions)

How do we decide what is to happen to our home and other financial assets?

When considering financial issues, first consideration will be given to the welfare of any children of the family. Other circumstances such as the income, assets, ages of parties, length of marriage, respective needs etc. will be taken into account. Again, every effort should be made to resolve such issues between you and you may wish to consider mediation or collaborative law to assist in reaching an agreement through Solicitors. If an agreement cannot be reached, the Court will decide on what is fair in all the circumstances. (See also Financial Factors on Divorce)

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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