Oct 18

Frequently Asked Questions on Divorce, and their Answers.

Posted by gowenstevensadmin on Tuesday 18th October 2016

You will find below some common questions which you may be asking yourself if you are considering a Divorce:

What is a common law wife?

There is no such thing as a common law wife. The phrase reflects a commonly held misconception. You are either a wife (by marriage) or not.

A cohabitee is not protected by Matrimonial law and in the event of a dispute about property or anything else will need to consider Property law to guide you. We can advise you if you and your unmarried partner bought a property and if you now cannot agree how much you each own of the property or if one of you wants to sell the property but the other does not.

Do my wife and I need to involve the Court to sort out our finances or can we just deal with it ourselves to save the legal fees?

While there is nothing stopping you and your wife reaching a mutual agreement to rearrange your finances, it is not the recommended way of dealing with your family affairs. Although it sounds like a cheap option it could be an expensive mistake.

You should have the terms of your financial agreement recorded in a Consent Order which should be sealed by a Judge of the Family Court. If the terms of your agreement are not recorded in a Consent Order that gets sealed by a judge then you may not be able to enforce the terms of the agreement if your spouse changes their mind. There is also the danger that your spouse may fall on hard times in the future and without a Consent Order in place you may find that they try and come back for another bite of the cherry. You may prefer the security of knowing that your finances have been settled and that any future inheritance or lottery win is protected from any potential claims from your ex-spouse. A divorce on its own does not protect you from future financial claims from an ex-spouse.

What is a Consent Order?

A Consent Order is effectively a Court approved and sealed document which records the terms of a financial agreement that a divorcing couple reach. It must be presented to the Court in a format thatthey recognise and which we as family lawyers can draft for you.

The agreement would record things such as for example when the family home will be sold, by which estate agent and what will happen with the sale proceeds. The agreement would effectively become a court order which the court can enforce if say your ex dragged their heels after the divorce. We can advise you if your case is suitable for a Clean Break Consent Order.

Do you need to have a hearing in front of a Judge to get a Consent Order?

Not necessarily. The terms of the Consent Order can be submitted in writing to the Court (along with the relevant supporting paperwork) for a Judge to consider in private. The judge will be making sure that the terms are reasonable in relation to your particular circumstances. The Judge can request further information from either party before he or she will seal the Consent Order. Once the Judge is satisfied that the terms are reasonable the document will be sealed by the Court.

When does the Consent Order take effect:

The Consent Order becomes binding as soon as the Decree Absolute or final order of divorce has been pronounced by the Court. The terms in the Consent Order will set out when the various terms are to take effect. It is usual to negotiate terms and dates that will suit both of you.

It is unwise for an application to be made to complete the divorce before the finances have been agreed. If you are a wife and you make an application for the Decree Absolute or for the divorce to be completed before the finances have been agreed then you may lose out of certain benefits if your spouse dies after the divorce but before the finances have been agreed.

Do I need to attend mediation?

If you are applying for a financial order or a child arrangements order from the Court then there is a general requirement to attend mediation before the application to explore whether there is a possibility of reaching agreement without the need of the Court to make an order. There are exemptions to this requirement and we are happy to confirm whether an exemption might apply in your particular case.

Do I have to reveal the value of my pension?

When considering the family finances it is important to play with the cards face down on the table. You and your spouse will need to show to eachother and the Court a full and true picture of your financial position. A Court will not be able to consider whether your agreement is fair and reasonable until they have weighed it against your circumstances. Your lawyers will also be unable to advise you about your requirements until they have been given a full picture of the resources available to you both.

Failure to provide the Court and your spouse with a true picture of your finances is not only punishable as contempt of court but it can also render your Consent Order worthless. Your spouse could apply to have the terms reconsidered and you are likely to bear the costs of that application as part of the punishment by the Court.

What is a form E?

The Court service have produced a rather hefty financial statement known as a form E which will record all of your financial information. It is usual for both parties to complete a Form E when sorting out their finances. Forms E can be exchanged on a voluntary basis or ordered to be exchanged by the court by a certain date if proceedings have been issued.You will need to attach evidence by way of bank statements and pay slips to the form before exchanging them with the other party.

Although at first sight these forms seem daunting, we are used to completing them and are happy to assist or even complete them for you.

Will I get half?

It is true to say that on divorce the starting point is for each spouse to receive an equal share of the family resources.This is not the same as being able to say you are entitled to half. If a marriage was very short this may not be the right outcome at all. Generally speaking however the Court will be looking to see that you are both in an equal position moving on from the marriage.

The Court has to consider various factors, the first priority being the housing needs of any minor children of the family.They will then look at the housing needs of the parties, and things like the ages, health, incomes and in certain circumstances the contributions and inheritance prospects of the parties. If you and your spouse could both be rehoused from an equal share of the family resources then it may be possible to keep any assets you brought into the marriage from being considered a matrimonial resource.

The court has a wide discretion and will always seek to achieve the fairest outcome possible in the circumstances.

Once we have been able to review both of your financial disclosures and once we know what your and your spouses future housing and income needs are we will be able to advise you about the type of settlement that you may expect a court to approve. Once we are able to suggest sensible settlement proposals with you it will be time to make proposals to your spouse.

My spouse/ partner has left home can I change the locks on our jointly owned property?

It depends. As a general rule, it is not permitted for one party to change the locks to prevent the other entering a property they partly own.

However, it is possible for you to apply for a non- molestation injunction against a partner who is harassing you or behaving in an aggressive or violent way.You can at the same time ask the court to make an occupation order excluding a violent partner from the family home. This may include allowing you to change the locks.

There may also be a good reason to change the locks if you believe that your security may be at risk by the keys being lost or in the hands of an unknown third party.

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