Divorce and Separation – common concerns

I’m recently separated from my husband/wife – what are my options??

Separation can be a scary and difficult time. It is important you explore and consider your options carefully to make sure you do the best for you and your family going forward.

Common concerns:

1. I’m faced with divorce proceedings and worried about having to go to Court.

You do not need to attend Court in order to seek a divorce unless the other party defends the basis upon which you are seeking a divorce or there is an issue over payment of the costs of the divorce.

There is one ground for divorce which is that your marriage has irretrievably broken down. In order to establish that breakdown you have to prove one of five facts which are that:

1. the other party has committed adultery and you can no longer tolerate living with them;
2. the other party has behaved in such a way that you can no longer be reasonably be expected to live with them;
3. you have lived apart in circumstances in which you both view to be permanent for a continuous period of at least two years immediately preceding the presentation of a divorce petition and you each consent to a divorce being granted;
4. the other party has deserted you for a continuous period of at last two years immediately preceding the presentation of the divorce petition
5. you have lived apart for a continuous period of at least five years immediately preceding the presentation of the divorce petition

The divorce process typically takes approximately four months to complete providing that the other party does not contest the proceedings.

It is important to be aware that the process of divorce simply brings your marriage to a legal end. It does not automatically resolve issues concerning the care of any minor dependent children and/or financial issues associated with your relationship break down. 

1. How much is a divorce likely to cost?

There is a Court fee of £410 which is due to increase to £550 shortly.

If you instruct a solicitor to act for you then try to find a firm who offer fixed fee packages so that you can budget properly. You may be able to seek that your ex pays something your costs or at least part of your costs.

In terms of financial and any children related issues then costs will be largely dependant upon whether you can resolve issues without having to go to Court.

Legal aid is available for family mediation which means that if you meet the financial eligibility criteria your costs will be met by the Legal Aid Agency.

Legal aid however is no longer available for Court proceedings save in serious cases of domestic violence and/or where there are serious child protection issues.

1. I’m worried my ex will fight me for “custody/residence” of our children

The law has changed recently in relation to children matters. There is no such thing as Residence or Contact any longer. One of the major reasons for the change was to do away with the badge of honour of “residence or custody”. Unless there are safety, or in legal terms, welfare reasons, as to why your children should not see the other parent, the law very clearly states that children should move between parents homes. There is no right or wrong arrangement or pattern of care. It is what is best for you and your family.

The process of family mediation is encouraged and if you were to have difficulties in discussing matters with your ex, then save in exceptional circumstances you would need to attend an assessment appointment with a specially trained family mediator to explore options for resolving issues with your ex as a first step before considering any Court proceedings.

1. What is mediation ?

Mediation is a process whereby you and your ex-partner meet with an impartial third person who is a specially trained family mediator who can assist you both to reach pragmatic decisions in relation to the issues involved in the breakdown of your relationship. The mediation process would involve you each attending at an assessment appointment with an accredited mediator and then if you were willing and the mediator felt it was suitable then you would have a joint meeting or a series of joint meetings.

Mediation is not an alternative to legal advice and it is important that you obtain legal advice as part of and to complement the mediation process.

1. I’m worried about money and how I will cope and whether I will have to leave my home

However finances are sorted out there is essentially a two stage process :-

1. First of all there needs to be an exchange of financial disclosure so that you can be sure as to what is there i.e you need to agree the asset base
2. Negotiations then take place as to what an appropriate financial settlement should be

In the short term it is extremely unlikely that you would need to leave your home. If your ex is harassing you or is causing you problems and you are worried about your safety, then you can approach the Court for an injunction to keep you and your children safe.

If you jointly own the family home then neither of you can exclude the other in the short term unless there has been actual violence or threats as to your safety.

In terms of what will happen to the family will depend upon what assets you have and your financial situation. It is important to take specialist advice so that you can take an informed choice before you start discussions with your ex.

The process of family mediation can also be used to discuss matters round a table with a specially trained mediation. If mediation is unsuitable for whatever reasons then there are a number of other options available to you and it is important to speak to a family law specialist.

1. My ex keeps threatening to take me to Court.

Court proceedings is the process of last resort in family law terms and a referral to family mediation would need to be made in the first instance.

However sometimes litigation is necessary whether to seek to resolve urgent and complex matters of law and/or where other methods have failed or are not appropriate. This may be for a variety of reasons such as in cases where there are child protection concerns and/or serious issues of domestic abuse. On other occasions it may be necessary to take action to prevent a removal of a child or preserve or prevent dissipation of asset