Here are some of the most common questions that get asked.
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Does
it matter who divorces whom?
There are some disadvantages in
being the one who is divorced. Firstly, you can be ordered
to pay the legal fees for the divorce; this may seem (and
often is) extremely unfair, a case of adding injury to insult.
This is based on the old principle in the courts that if you
prove your case then you get your costs, despite the fact
that it is not always appropriate in the family justice system.
However, if the practicalities of the actual divorce are agreed
by both parties, it is also possible to agree that the two
of you will share the legal fees between you, or indeed that
the person who actually files the petition will not seek an
order for costs against the spouse.
Secondly, you may have the unpleasantness
of being on the receiving end of some legal description of
your private life, especially if the divorce is based on unreasonable
behaviour. It is possible to file an Answer to the allegations
and try to regain control of the process by forcing a compromise
on the allegations made, but most prefer to avoid the legal
complications and significant expense of doing so. Nevertheless,
allegations made as to unreasonable behaviour do often stick
in the gullet as the contents of the Petition rarely have
much to do with why the marriage broke down.
But who petitions against whom
rarely spills over in to other more important areas, such
as the children or finance. It is worth just checking that
none of the allegations in the Petition relate to dealing
with the children or to financial issues, since once the divorce
is granted, those allegations become a finding of fact. Unless
it is specifically agreed beforehand, these findings can be
referred to in linked proceedings.
The usual way of preventing such
difficulties - and much acrimony too - is to offer the Petition
in draft before it is sent to the court. Any items that cause
particular upset can be discussed and either watered down
or left out. This is not something that everyone has to do,
but is very much in the spirit of the SFLA Code of Practice.
An early discussion with an SFLA
solicitor can help resolve some of these issues.
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Is
there going to be a new law of divorce?
The Family Law Act 1996 was passed
in a fanfare, hailed as going some way towards removing acrimony
in the divorce process by getting rid of the concept of 'fault'.
However, the Government has since announced that those parts
of the Act dealing with divorce will not now come into force.
We are, unfortunately, left with
the present system for the foreseeable future.
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Which
court does it have to be in?
If the divorce is going to take
place in England and Wales, it is possible to get any County
Court that is empowered to deal with divorce to issue proceedings.
It is usual to use your local court
for convenience's sake. Some use a court that is out of their
area for fear of coming into contact with people they know
in the local context (Mrs Simpson used Ipswich!). The Principal
Registry in London is used by many who do not live there,
for a mixture of all of these reasons or perhaps they believe
that that court will handle their case better.
Practices and judicial attitudes
vary from court to court. Experienced solicitors with knowledge
of the system sometimes choose a particular court for a particular
case, to try and gain some advantage for their client.
But for the vast majority of cases
it is convenience that is the deciding factor - convenience
for the solicitors particularly, since they will charge for
their travel time to court. In any event courts have the power
to order cases to be transferred to the court that is most
appropriate - in the view of the judge rather than anyone
else.
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Do
children automatically live with their mother?
Married parents share joint parental
responsibility and come before the Court as equals. The children's
welfare is the court's paramount consideration.
If there is a dispute as to with
which parent the children should live, one or other of them
must issue an application for a Residence Order. In considering
which parent is best able to meet the child's best interests,
the Court will apply the "welfare checklist" (s1(3)
Children Act 1989).
The application of the Welfare
Checklist points towards pragmatism:
- Who is best able to meet the
child's day to day needs?
- What has the domestic routine
been in the child's life to date?
- Even if there is little to choose
between the two parents in terms of their actual parenting
skills, are the work commitments of one more conducive to
having primary care of the children? This last consideration
is often fundamental and traditionally, has tended to work
in favour of mothers, but increasingly, this need not necessarily
be the case.
- Even where one parent does have
a Residence Order in his or her favour, that does not alter
the fact that the other parent retains parental responsibility
and has an important role to play in the child's life. In
theory at least, a Residence Order is not a passport to
making important decisions about the child's upbringing
on a unilateral basis.
- In the case of unmarried parents,
the mother has sole parental responsibility until the father
acquires it by way of an agreement, or Court Order. He will
however be granted parental responsibility automatically
if he has a Residence Order in his favour.
- In the case of very young children, it is a fact that
courts tend to assume they are better off living with their
mother unless clearly shown to the contrary. Nevertheless,
there is no presumption of law and the courts have to consider
each case on its individual merits. Although the odds may
seem stacked against a father, the facts may mean that this
is not necessarily the case.
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Is
a 50/50 split the usual financial settlement?
Recent cases concerning 'big money'
- where the assets available for division clearly exceed the
parties' needs - have focused on the concept of equality of
outcome. This may or may not mean that the assets are divided
50/50 in these cases. What it does mean is that contributions
to the running of the home and the bringing up of children
are valued equally by the court on divorce to contributions
made by economically rewarding work. There may be other considerations
- for example, the liquidity of the assets making up the family
pot, or any inheritances received, or particularly bad financial
conduct on one side, which dictate that the outcome should
not be equal. Fairness is the key - and a 50/50 split will
not be fair in all cases.
Each case has to be looked at individually. It depends on
the circumstances of those involved.
In most cases, the financial settlement
will reflect what each person needs fundamentally, money to
pay all the bills and to sort out somewhere to live.
Having an equal split is sometimes
the starting point, but a lot of other factors have to be
taken into account.
See the section on FINANCE
for more details. This explains how the law works.
The great strength of the law is
that it is flexible enough to treat each family differently.
But that does make it difficult to work out what is right
for you.
We recommend that you consult a
solicitor about your own case - to see what the likely outcomes
might be.
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Should
I close my joint account?
Many couples do not make any changes
to their banking arrangements until financial negotiations
are well advanced.
But if there is a risk that large
sums may be drawn out - or if there is a risk that credit
or charge cards may be used inappropriately - then it may
be safer to take action to prevent this.
The danger is that if an account
or credit card is suddenly frozen, solicitors may be involved
immediately to ask for maintenance arrangements to be set
up - perhaps through the courts.
Much depends on whether you can
trust each other enough to leave things as they are.
If you need to rearrange the accounts
on separation we recommend that you try to agree those changes
first. Think about mediation.
If you have concerns about this
area then consult a solicitor.
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What
happens to my house if I die?
You need to check the way in which
your home is owned. Is it in your sole name? If it is, it
will pass under the terms of your will or intestacy.
There are two ways of owning a home jointly - as equitable
joint tenants, or as tenants-in-common.
Many couples own their home as joint tenants, which means
in such a way that if one of them dies, the other owns the
property outright automatically.
This arrangement may still be the
right one after separation - at least for the time being.
It is possible though to change
the way in which you own any property jointly - so that if
one of you dies then his or her share passes to their estate
and is then dealt with under their will i.e. to set up a tenancy-in-common.
This is called severing the joint tenancy by giving a formal
Notice of Severance to the other joint owner.
Your solicitor can prepare this
for you. You should always take advice on this point because
it may lead to claims against your estate if you die.
It may be helpful to prepare a
new will early on - even if this is only a temporary measure.
The decree absolute of divorce
automatically alters your will in so far as it relates to
the other spouse. It is important to consider changing your
will at that stage in any event.
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What
happens to the children if I die?
Where both parents have parental
responsibility, in the event of the death of one, the surviving
parent will retain sole parental responsibility.
The exception to this is where
the parent who died had a Residence Order in his or
her favour, in which case, any guardian appointed in the deceased
parents Will will automatically assume Parental Responsibility
in tandem with the surviving parent.
If there is a dispute between those
with parental responsibility as to with whom a child should
live in the event of the death of his or her primary carer,
then an application for a Residence Order needs to
be made to the Court who will then determine with whom the
child should live.
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Can
I change my childs surname?
Neither parent, nor indeed any
other person, can change a childs surname without the
written consent of every person with parental responsibility
or the leave of the Court. Even in cases where the parents
are unmarried, the Court has suggested that such a step should
generally not be taken without either the other parent's agreement
or a court decision. Changing a childs surname is obviously
a very emotive step, since the surname may provide an important
link to the parent with whom the child does not normally live;
it may also express a preference to be known as the child
of the step-parent.
The Court will not consider it
appropriate to change a childs surname just because
it is different to that of their halforstep-siblings,
nor even simply because the child wants it changed. The Court
will not sanction a change in surname lightly; there is a
presumption in favour of the status quo.
Increasingly, children may be part
of a step-family in which children do not all share the same
surname. It is therefore important that any such proposal
is very carefully thought through and justifiable on quite
strict grounds, such as where there is no ongoing relationship
whatsoever with the other biological parent and so to retain
that name causes distress and confusion.
The uppermost consideration for
the Court in considering whether a change of surname is appropriate
is the childs welfare and best interests. It is everything
to do with the rights of the child and nothing to do with
any asserted parental rights. How those best interests are
met will depend upon balancing a range of factors including:
- the original surname with which
the child was registered and whether all the circumstances
justify such a change (ie. is there a good enough reason?);
- whether the change of name has
already happened and how long ago;
- the age of the child involved
and whether he or she is deemed competent to understand
the complexity of issues arising;
- the need to preserve a link
between the child and the non-residential parent, regardless
of contact arrangements;
- whether the reaction of either
parent to the decision and any consequences would cause
practical detriment to the child;
- the strength of the child's
connection with the current surname.
In certain instances the Court
has made a distinction between a childs "official"
name and the name by which the child chooses to be known;
this to be particularly relevant with an older child, although
the parents themselves would be obliged not to cause them
to be known by anything other than the official name. However,
in another case involving teenage children the Court decided
that the fathers surname should be kept in the face
of opposition from the children and in circumstances where
no contact was taking place in order to underline the importance
of the paternal link.
Inevitably, the issue continues
to be a difficult and highly emotionally-charged one to resolve,
but one in which the Court considers it important enough to
be involved where the parents cannot agree.
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How
can I keep my legal fees down?
Solicitors usually charge for their
time - the more of their time you use up, the more they cost.
Here are some tips for keeping
fees down:
- Use this site and tell your
family about it!
- Don't talk to your solicitor
about emotional problems - there are better qualified people
to help with those who cost less. Solicitors will be sympathetic
and may need to know some background but their skills are
different.
- Use mediation to sort out as
much as possible - your solicitor has a vital role to play
even if you mediate, but you may be able to sort out a lot
of issues yourselves - and certainly a lot of the financial
disclosure.
- Use a check-list of things you
want to ask - you will be charged for each call you make,
so be sure beforehand that you know all the things you want
to ask about - you will save on the additional calls.
- Keep a file (somewhere safe)
of all your solicitor's letters and documents in an organized
format. It is important that you can keep track of the advice
you have had, and you are likely to have to refer to what
has been sent to you. Some of your queries may already have
been answered.
- Keep a file of all your bank
, credit card and charge card statements - and the rest
of your financial information. One of the expensive tasks
your solicitor may well have to do is examine your financial
position; if this is in chaos you will be paying for your
solicitor to prepare details of your outgoings, your mortgage
and life assurance, your pensions and so on.
- Fill in as much as you can of
our Financial Checklist - you will find this under Finance,
in particular the section Practical
Steps.
- Don't bother your solicitor
with less important things which could be done by a secretary
- if it is anything other than advice, then ask a secretary
who is involved, for confirmation of dates or appointments,
copy documents etc.
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