Frequently Asked Questions: Family Expert, Leading Family and Matrimonial Law Firm

• What is the first thing you should do if you think you may be separating from your spouse?

  • One of the first things you should do is set up a meeting with your solicitor to discuss what will happen to your joint assets and to consider arrangements for children. When you are getting divorced you may need to deal with a number of organisations. Consulting a specialist family lawyer who is experienced in family law is advisable because they will be specially trained to act and advise you individually on your interests and how best to protect them. They can also give you advice on other services available and can explain the steps and options available to you.

• What do you do if you have a joint bank account?

  • If you have a joint account both of you will have access to any money in the account. If the account is in joint names, on the death of one spouse the whole account immediately becomes the property of the other. In certain circumstances the account will be closed and the account can sometimes be frozen pending an agreement on the division of the assets being reached.

• What do you do if you are a housewife / husband with no income or the higher earner?

  • Your family lawyer will advise you about organisations and individuals who can provide valuable services such as the benefits agency and the child support Agency and provide advice on your financial rights.

    When looking at how assets will be divided the law which governs the division of matrimonial assets is governed by section 25 of the Matrimonial Causes Act 1973. This allows the court to allocate assets between the parties whether they are a unemployed or in full time employment.

    The Court must give regard to a list of factors which all must be considered. These include the income and earning capacity of each of the parties now and in the future, the age of each party and duration of the marriage. The courts will then look at the needs and reasonable requirements of the parties and where possible attempt to achieve an equal division of the assets if in all the circumstances it is reasonable to do so.

• What is the step by step process of the legal proceedings of separation/ divorce?

  • Once you have decided to separate and commence divorce proceedings your solicitor will advise you on whether you have sufficient grounds to issue a divorce petition. The only ground for divorce is irretrievable breakdown but to show this to the court you will need to rely on one of five facts. These are desertion, adultery, unreasonable behaviour, two years separation with both parties consent or five years separation.

    If a divorce is not defended the process can be concluded fairly swiftly within a period of four to six months and there should be no need for you to attend court. However resolving other issues relating to finances or children may take longer and this can sometime result in the divorce being delayed.

• Should you change your will?

  • While you are married any will you have is valid. The main consequence of divorce is that any appointment in your will of your former spouse as executor or trustees will be ignored and any legal gift to your former spouse will fail.

    If you have not already made a will it is always advisable to make one irrespective of divorce proceedings. Your solicitor can advise further with regards to various implications and situations.

• What do you do about a property you own together?

  • Depending on how the property is held in law, you may wish to sever a joint tenancy so that you hold the property in equal shares pending the marriage being dissolved, otherwise your share will automatically pass to the other party on your death.

    Leaving the family home does not necessarily mean you are giving up any legal interest you have in the property. Within any financial negotiations or court proceedings consideration of the options concerning the property will occur. These include the property being sold, one party purchasing the others interest in the home or one party being allowed to live in the property for the foreseeable future or until certain events occur, such as a child reaching a certain age. To consider these options details of any outstanding mortgage and the property value will be needed.

• What do you do if your name is not on the mortgage?

  • If your name is not on the mortgage or the title deeds to the property you may still have a beneficial interest in the property. You can protect your rights and potentially prevent a sale of the property pending financial issues being resolved, by registering your rights with the Land Registry.

• What are the steps you can take over childcare / custody?

  • If you and your souse can agree on where and with whom the child will live and the arrangements for seeing the other parent there is no need for a court order as the courts adopt a non intervention approach. The courts should only be involved is there is a serious dispute which cannot be resolved. The Children Act 1989 provides that a parent can apply to the court for determination of these issues. However the court will only make an order if it is of the opinion that it is better for the child to make an order than not to. The best interests of the child will always be the courts paramount consideration.

• What do you do if you think there is a chance of reconciliation?

  • Your solicitors will advise and discuss reconciliation with you at the outset and can provide details of organisations such as Relate who maybe be able to help.

And finally....

Divorce is a complex process and your family solicitor will ensure your rights are protected and deal with matters in a constructive and sensitive manner in what can be an emotional and distressing time.