Family Law Fact Sheet

Transcription

1 Family Law Fact Sheet DIVORCE, SEPARATION & DISSOLUTION OF CIVIL PARTNERSHIPS Do I have an automatic right to obtain a Divorce? No. The only way to obtain a divorce is to prove that the marriage is irretrievably broken down. To do this, you must prove one of the following five grounds: Adultery Unreasonable behaviour Two years separation and consent Desertion Five years separation Is Divorce the same as Judicial Separation? No. Divorce results in the marriage being dissolved and each party is then free to re-marry. A Judicial Separation, often known as a legal separation, does not result in the dissolution of the marriage. What is a Deed of Separation? If no Court proceedings for either Divorce or Judicial Separation are commenced, the parties to the marriage can come to a private agreement. A Separation Agreement can be drawn up, which usually concerns issues relating to finance and children. This settles practical issues, but does not dissolve the marriage. How long does it take to get divorced? In a straight-forward undefended Divorce, proceedings will take four to six months from start to finish. However, it can take longer if there are any disagreements about children or difficult family finances to resolve. Can I oppose a Divorce? Yes, you can oppose a Petition for Divorce commenced by your spouse. However, it can be an expensive exercise in terms of the legal costs involved. It is important to consider what you have to gain by defending the action. Do I need to appoint a solicitor who is a divorce expert? It is advisable because divorce is a legally complex area and a firm of specialist divorce solicitors will guide you through the process. How do I dissolve a Civil Partnership? The procedure is similar to obtaining a Divorce, the end result being that the Civil Partnership is dissolved How much will it cost? Close Thornton offers a fixed fee Dissolution of Civil Partnership or Divorce for VAT,+ court fees. For more information, please contact Katie-Lee Pearson or Christine McLay at Close Thornton Solicitors on

2 Family Law Fact Sheet ASSETS & LIABILITIES Are assets divided according to who paid for them? Not necessarily. If the marriage was a short one and there are no children, it is possible that the Court will consider who paid for things or who brought money into the marriage. However, if the marriage is a longer marriage or there are children, most assets will be considered as matrimonial assets and equality is the first presumption. If one party leaves the house, do they lose their interest in it? If the house is owned in joint names, both parties still own it even if one of them is not living there. If the house is not in one of the parties names, the situation is more complicated. One party may lose the right to live in the house once he or she is divorced, so this needs to be discussed prior to completion of the Divorce. Does a common law husband or wife get half of everything? No. As they stand, the laws concerning Divorce do not recognise common law parties. If two parties are not married, each will have difficulty in claiming any interest in the other person s property, possessions, investments or pensions. This is an on-going area of debate in Parliament. What about debt? Debts will be taken into account, regardless of whose name they are in, during the proceedings to settle the end of a marriage. However, if a loan or debt is in the name of one party, the finance company can only sue that party for the money. What if the parties cannot agree? If the parties cannot agree, either party can apply to the Court to issue and Application for a Financial Order. What if the parties agree? If the parties reach an agreement at any stage during the process, an Order by Consent can be drafted and submitted to the Court. How are pensions divided? Pension funds are seen as part of the family assets. There are three ways in which pension funds are dealt with in Divorce: Off-setting: An agreement is reached so the person without a pension fund, or a smaller one, receives a larger proportion of the value of other assets, such as a property. Pension sharing: This has been in operation since December Part of the pension member s fund is split off and used to create a separate fund for the other person. Ear-marking: This enables a party to receive a proportion of the other party s pension when he or she starts to receive it at retirement. For more information, please contact Katie-Lee Pearson or Christine McLay at Close Thornton Solicitors on

3 Family Law Fact Sheet CO-HABITATION Are you living with another person? What should we do to protect ourselves when we move in together? What will happen if you separate? This factsheets outlines some of the key issues. Does a common law husband or wife get half of everything? No. As they stand, the laws concerning Divorce do not recognise common law parties. If two parties are not married, each will have difficulty in claiming any interest in the other person s property, possessions, investments or pensions. This is an on-going area of debate in Parliament. What can I do to protect myself when we live together? You can enter into a Living together Agreement which clearly sets out what will happen if you separate. What if I do not have a Living together Agreement and we separate? If you are unable to agree matters with your partner, the only option is to apply to the Court under the very limited existing legislation available. For example, you could apply to the Court for an order for sale in respect of any property or you could apply for a lump sum payment on behalf of any children of the family. For more information, please contact Katie-Lee Pearson or Christine McLay at Close Thornton Solicitors on

4 Family Law Fact Sheet CHILDREN Will a child always stay with the mother? While this is statistically the most common outcome, it is not always the case. The Court will decide what is in a child s best interest. How is a child s best interest decided? The Court will consider several factors including: Can the child choose? the wishes of the child the age and level of understanding of the child the child s physical, emotional and educational needs the effect of a change of circumstances on the child any risks to the child the capability of the parents to meet the child s needs The Court will take the wishes and feelings of the child into consideration. This becomes more important if the child is older. What if the parents cannot agree? The first step is a referral to mediation. If not suitable, it may necessary to issue an Application to Court. If the issue goes to Court, a Welfare Officer may be appointed. Their role is to discover what the child s wishes really are, without a child having to make a direct choice. Does maintenance have to be paid to ensure contact with a child? The issue of financial contributions towards the support of a child by paying maintenance is entirely separate from contact arrangements between parents and a child. Contact with a parent is the right of a child. Does a parent have the right to see their child whenever they want? Both parents have equal legal right, but this can create problems. Unplanned visits can be disruptive, especially if they come at an inconvenient time. It is better to have pre-arranged times when contact should take place. Random or unplanned visits can be unsettling for a child. It is important that the child knows exactly when they are due to see each parent again. For more information, please contact Katie-Lee Pearson or Christine McLay at Close Thornton Solicitors on

5 The Divorce Process DIVORCE PETITION PREPARED DRAFT SENT TO DIVORCE PETITION ISSUED AT COURT SERVICE OF DOCUMENTS UPON RETURNS ACKNOWLEMENT TO COURT APPLY FOR DECREE NISI APPLY FOR DECREE ABSOLUTE

6 Dissolution of a Civil Partnership DISSOLUTION PETITION PREPARED DRAFT SENT TO DISSOLUTION PETITION ISSUED AT COURT SERVICE OF DOCUMENTS UPON RETURNS ACKNOWLEMENT TO COURT APPLY FOR CONDITIONAL ORDER APPLY FOR CONDITIONAL ORDER TO BE MADE FINAL AFTER SIX WEEKS AND ONE DAY

7 Children NEGOTIATIONS BETWEEN PARTIES REFER TO MEDIATION COURT APPLICATION FOR AN ORDER ISSUED SERVICE OF DOCUMENTS UPON RETURNS ACKNOWLEMENT TO COURT FIRST DIRECTIONS APPOINTMENT AT COURT WELFARE OFFICER APPOINTED IF APPROPRIATE FURTHER DIRECTIONS APPOINT- MENT IF APPRORIATE FINAL HEARING IF APPRORIATE

8 Assets & Liabilities Procedure for a Financial Application DISCLOSURE OF FINANCES BY BOTH PARTIES DETERMINE WHETHER A MEETING BETWEEN PARTIES IS AP- PROPRIATE REFER TO MEDIATION COURT APPLICATION ISSUED FOR A FINANCIAL ORDER FINANCIAL STATEMENT COMPLETED (FORM E) FIRST DIRECTIONS APPOINTMENT AT COURT FINANCIAL DISPUTE RESOLUTION HEARING NEGOTIATIONS TO SETTLE FINAL HEARING