It is very painful when a marriage break up occurs, and your first thoughts are not often about whether you need to obtain legal advice, so why might legal advice be required? There are still many misconceptions about divorce, the process and when there should be a financial settlement.
There is only one ground for a divorce which is the irretrievable breakdown of a marriage.
To prove the irretrievable breakdown your divorce must be based on one of the following five facts:
- Unreasonable behaviour
- Separation of 2 years, which both parties consent to
- Separation of 5 years
You cannot simply say that you have grown apart, or no longer love each other. Although the government have recently consulted on changing the laws to enable there to be a “no fault” divorce until these laws are changed, to divorce immediately you do need to allege fault.
You must have been married more than one year to even commence divorce proceedings. If you have not been married for over a year, you might need to consider alternatives such as judicial separation or a separation agreement?
A common misconception is that it is easier to divorce after you have been separated for 2 years. The reality is that the process (currently) is exactly the same as if you had divorced using either the grounds of adultery or unreasonable behaviour. The same court fee (currently £550) also needs to be paid.
Currently the court is taking approximately 12 months to process a divorce from start to finish.
A divorce only dissolves the marriage; it does not end the financial claims that have arisen as a result of the marriage. These need to be separately dismissed by the court. If they are not and perhaps a few weeks after your Decree Absolute is granted you win the lottery, your former spouse could come and make a claim against you.
This is a common mistake, particularly with DIY divorces. Even if you have no assets now, you may do in the future, and you therefore need to enter into financial agreement resolving the issues now so that no claim can be made against you in the future!
It is particularly important if you do have assets that a financial agreement is entered into at the time of the divorce. It can be difficult many years later to say exactly which assets were from the marriage and which have been accrued post divorce.
For more information, or preliminary, confidential discussion please contact our Family Team.