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Divorce - your questions answered.
So often after an initial interview questions arise that you wished you had asked.
To try and overcome that problem we've put together answers to the most common questions asked of us.
This is not an exhaustive list so if you are still unsure about any particular point, then please do not hesitate to ask.
If you need further help or assistance please contact philip.patterson@reeswoodterry.co.uk or telephone us on 02920 408 816
Questions
How long do I have to be married before I can divorce?
At the moment you have to have been married at least one year before you can petition for divorce
although it is possible to have the marriage annulled within the first year. To obtain a nullity there are very specific
grounds which we can discuss with you.
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I've heard there is only one ground for divorce namely Irretrievable breakdown?
That is correct but the court requires you to prove irretrievable breakdown by relying on one of five legal facts. These are:-
a) Adultery - this means sexual intercourse between your spouse and a member of the opposite sex.
You must also find it intolerable to live with your spouse.
b) Unreasonable behaviour - this means behaviour by your spouse to such a degree that you could not
reasonably be expected to live with them. Examples of this would be physical assaults as well as a
whole variety of conduct which makes you feel unhappy.
c) Desertion - your spouse must have left you or forced you to leave by your behaviour and you must have been apart for a period of 2 years.
d) 2 years separation - this is where you and your spouse have lived apart for a period of two years
after you realised your marriage was at an end and your spouse consents to a decree being made.
e) 5 years separation - this is where you and your spouse have lived apart for a period of 5 years.
There is no requirement for consent here but there are special provisions to prevent a decree being grated
until the finances of the parties have been resolved.
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If I have just arrived in the country can I still petition for divorce?
You have to establish domicile (which is a technical legal term being the notion of belonging to a particular place) in England and Wales or otherwise that you have been a resident for at least 6 months.
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Does it matter whether I was married in a different Country?
No, provided the ceremony can be proved by a certificate or other official
document.
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What happens after the papers are signed?
The divorce petition, together with certain other papers, is filed in the County Court.
Thereafter they are served by post upon your spouse who has to return an acknowledgement of
service to the court answering a number of questions which are designed to find out whether there
will be any dispute over the reason for the breakdown of the marriage or over any issues as to the
children or the cost of the proceedings. A copy of this document is then sent to us. It should be
filed at court 8 days after service of the divorce petition.
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What if my spouse ignores the papers?
If your spouse does not acknowledge receipt of the papers, we can ask for the court
bailiff to serve the papers personally upon your spouse which will prove that he/she
has received them. There are also other means of proving service if the bailiff is not
successful and which we can discuss with you.
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What if I don't know where my spouse lives?
The court will expect you to make every effort to find out where your spouse lives.
However, if you are unable to do so an application can be made to the court to ask for permission to proceed without serving your spouse.
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Is there any point defending a divorce?
Some individuals will always want their day
in Court, but unless the reason for the breakdown of the marriage involves
very serious misconduct then there is no specific the need to defend a
petition.
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How long does it take to be divorced?
If your spouse decides not to defend the suit
then once the acknowledgement is returned to the court then you are entitled
to make an application for the Decree Nisi. To do this you have to provide
a sworn statement confirming the accuracy of your petition which is then
presented to the District Judge. Provided your case is proved to the satisfaction
of the court then a date will be fixed for pronouncement of the Decree
Nisi. On average the time between applying for the decree nisi and its
pronouncement is about 4 weeks. This can vary depending on the amount
of other business the court has to do. You are NOT divorced until the
Decree absolute is pronounced. There is save in exceptional circumstances
a cooling off period of 6 weeks after the decree nisi is pronounced before
the decree absolute can be applied for.
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What if my Spouse will not apply for the decree
absolute? can I apply?
Yes, you may apply 3 months after the first date that your spouse could apply for the decree
absolute i.e. 4 months and two weeks after the decree nisi. The court may however refuse such an
application if it considers that to grant the decree may cause some disadvantage such as loss of
pension rights or prejudice to the conclusion of a financial claim. In cases involving divorce on
the grounds of either 2 or 5 years separation, there are special provisions that may prevent the
pronouncement of a decree until all the financial terms have been decided.
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Will I have apply for custody of the children?
The Children Act has swept away the concept of custody. Each parent will acquire by virtue
of marriage joint parental responsibility. This imposes obligations on the parent to be responsible
for the child rather than the old concept of custody which was often used as some possessory right of the parent.
The Children Act encourages the parents to agree arrangements for their children between themselves and only intervenes
in the event of a dispute. If you have any concerns over any specific issue then please feel free to discuss these with us.
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Do I have to obtain my Spouse's permission to take the children on holiday?
It does foster good relations to have your spouse's agreement to any unusual arrangements.
If you have that then there are no restrictions at all. It is desirable that you should take
written proof of consent in case you are challenged over your right. If your spouse objects it
may be necessary to make an application to court to obtain permission.
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Should I contact The Child support Agency over maintenance for the children?
If you are in receipt of Income Support or Family Credit,
the Benefits Agency will make the referral for you. Otherwise, you have to make the application.
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Can I change my child's surname after the divorce?
If your child is below the age of 16 years old,
then to change the child's name you require the consent of your spouse.
You must produce a letter of consent from your spouse which will need to be
shown for the change of name deed. We can assist you with such a change of
name deed for your child or children.
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Will I lose any of my pension rights on divorce?
It is possible for the court to make orders in relation to pension entitlement.
We are happy to discuss this with you in detail. .
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How long will the divorce process take?
The answer to that depends on how complex
your affairs are and how easily agreement is reached or the case made ready for a hearing.
You can increase the efficiency of our task by responding to requests for information as soon
as possible and being open about disclosure of your financial circumstances. There was no duty to
disclose to your spouse anything about your financial affairs during marriage but upon divorce the
court imposes an absolute duty to disclose all your financial affairs. If this is done then the
whole process should take within 6-12 months.
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Do I need to make a new will after my divorce?
Yes, we would advise you to make a new will after your divorce
has been finalised and we can put you in touch with one of our probate solicitors to talk about this in detail.
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We hope that you have found this information helpful.
If you do have any other questions then please do not hesitate to contact our offices.
Telephone us on 02920 408 816
E mail us at philip.patterson@reeswoodterry.co.uk
Call at our offices - 9/11 St Andrews Crescent,
Cardiff, CF10 3DG
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