25 MOST COMMONLY ASKED FAMILY LAW QUESTIONS

1.   Can I get divorced during lockdown? 

Yes, you can. All work and court attendances if needed can be done remotely. You can also apply for divorce online, which is a good tool to use during this time.

2. Can I get divorced within 6 months of being married?

No. There is a 1 year bar.

3. Can I still live with my partner whilst divorcing? 

Yes you can, however, if relying on 2 years separation and consent or 5 years separation, you must “live” separately. For example, you must create a separate living space for each other by not eating/sleeping/socialising together.

4. I’m facing domestic abuse; how do I get my partner to leave the property? What if he/she owns it and I don’t?

Firstly and most importantly if you require urgent help, please contact the emergency services or local charities that can help you. You can also contact your solicitor who can help you make an application to the court for a non-molestation and occupation order. The occupation order can essentially remove your spouse from the property temporarily (usually up to 1 year), despite whoever owns it.

5.  My partner accuses me of cheating with no proof, could he/she still divorce me with this? 

Your partner doesn’t necessarily need proof, however in the absence of this they will be advised to rely on unreasonable behaviour. The unreasonable behaviour would then be an inappropriate relationship with another woman/man.

6.    If I committed adultery can I divorce my spouse? 

No. You would have to rely on another fact for your marriage breakdown.

7.    Does my partner have to pay for maintenance for the children if they live with me full time? 

Yes. This can be arranged between yourselves/solicitors or through the CMS.

8.    Can my spouse support me with finances during divorce with maintenance (not including the home)?

If your partner has always supported you financially and the payments cease, there is an argument to say that the financial support should continue until you have reached a financial settlement. You could make what’s called a maintenance pending suit application to the court for this. If you are successful in this application, it is usual that your partner would have to pay for the legal fees you have incurred to get the order.

However, if you are unsuccessful in your application, it is likely that you will have to pay for your spouse’s legal expenses for contesting the application.

9.    Can I get divorced and deal with the finances later-on? 

Yes, although it is not ideal as being married whilst dealing with finances provides you with various protections.

10.  How much is divorce? 

This completely varies from case to case. It depends on how complex your case is, how many assets are involved, whether you are using court proceedings and so on. At Kleyman & Co we will keep you completely informed of your fees continually and at each stage of divorce.

11.  Can I get legal aid for my divorce? 

You will only be eligible for legal aid if you are a victim of domestic abuse.

12.  Who pays for the divorce?

Usually each party will bear their own costs however as mentioned above you may seek maintenance pending suit of a financial settlement. You may also be eligible for help with fees for the costs of the divorce petition.

13.  How long does divorce take? 

This is dependent on how simple or complex your case is. If you are in court proceedings this is typically between 6-12 months.

14.  What percentage of the finances will I get? 

The court aims to start the financial split at 50/50 and following various considerations the court will then depart from this split. For example, the court would consider if you have any inheritance funds that were not intermingled into the marriage. This same approach is considered in negotiations outside of court.  

15.  Do I have to give my spouse back the engagement ring? 

You would not have to give it back to your spouse, as the engagement ring is considered to be a gift. However, if it has significant value, it will be considered in the matrimonial pot when negotiating the finances.

16.  Can we always use the pre-nuptial agreement? Can the court ever say that it is invalid? 

Although pre-nuptial agreements are not binding (unlike in the USA), the court still places heavy weight on them. There is a certain criterion that needs to be met for the pre-nup to be valid. If it is a valid agreement, then it is likely that the court will uphold this when divorcing.

If the agreement is invalid, then the court is unlikely to uphold it and therefore divorcing parties will need to reach a financial resolution through alternate means.

You may depart from the pre-nup, if you mutually agree to do so.

This is the same approach that is used in negotiations without the court’s involvement.

17.  What happens to our pet, who gets to keep it? 

The family pet in the eyes of the court is looked at as real property, however the court’s do acknowledge the relationship between pets and their owners. Who gets to keep the pet can be a common dispute found in family courts. If you are unable to reach an arrangement outside of court, you would have to put your case forward to the court in the usual way (i.e. that your attachment to the pet is more so than your ex’s). The court will then decide on the arrangements for the pet (e.g. transferring ownership, joint custody, shared maintenance of the pet and so on). You may want to consider what would happen to your pet in a pre-nup/post-nup agreement!

18.  Who would our children live with predominantly? 

This would be something that is either agreed between both parties or through the court. The court’s paramount consideration is the children’s welfare and where this will most likely not be disrupted.

19.  I would like to discontinue the divorce, when is it too late? 

If you have received your decree absolute, then you are legally unmarried and there is no way of undoing this (unless you re-marry). If you are at the decree nisi stage (or any stage before that) you are still married so long as you don’t apply for the decree absolute. If you have applied for the decree absolute but have not yet received an order from the court, you/your solicitor may be able to stop this from happening by urgently contacting the court.

20.  My wife is stopping me seeing the children, how can I challenge this? 

You can make an application to the court for a child arrangements order.

21.  Will I always have to go to court for divorce? 

For the divorce – no (unless the divorce is defended by your spouse).

For the finances/child arrangements – also no. Going to court for finances/child arrangements should always be the last resort. You must exhaust all other options such as mediation and negotiations before initiating court proceedings.

22.  What is a “quickie” divorce and how can I get one?

 There is a misconception that if you both agree to getting divorced that it will be over and done with within a months’ time, in other words a “quickie” divorce. As mentioned above, it much depends on the complexities of your case, whether you dispute the financial split and so on.

 23.  Can my spouse and I use the same solicitor? 

No as there would be a clear conflict of interest. Your solicitor will always want the best outcome for you and push for the most beneficial outcome of the matrimonial pot. One solicitor would be unable to do this when acting for both sides. Even if you have agreed the finances, both of you still need independent legal advice on each term of the agreement.

24.  We got married abroad; can we still get divorced in the UK? 

Yes – as long as we can translate your marriage certificate, you can still use the UK courts to get divorced. However, you need to have a connection with this country to get divorced here i.e. you were born here.

25.  How much private information will I have to share? 

You will have to be completely full and frank in your financial position. This means that when the time comes to provide information on your finances, you will need to be able to provide all evidence to back up the figures you mention.

For example, you must provide 12 months bank statement of all of your bank accounts. If, however, you negotiate a settlement between yourselves and merely want your solicitor to put this together in a consent order, you may not need to share evidence of your private information.

A solicitor cannot adequately advise you on a fair settlement if financial disclosure has not been exchanged.

If you have any more questions, ask away! Contact me on email at andrea@kleymansolicitors.com or call me on 0203 887 8740.