Q&A: Divorce

Q I got married 9 months ago but am not getting on with my spouse. Can I get a divorce?

A In order to file a petition for a divorce, you need to have been married for at least 12 months. Once 12 months has passed from the date of your marriage, so long as you have sufficient grounds, you will be able to apply for a divorce.

Q Is the fact that my spouse and I have grown apart sufficient reason to get a divorce?

A Unfortunately not, in order to get a divorce you need to prove that your marriage has broken down irretrievably. This is proved by one of five facts: adultery, unreasonable behaviour, desertion, two years’ separation (with consent from your spouse), or five years’ separation (without consent from your spouse).

Q My spouse has financially supported me throughout our marriage, what will I do once we are divorced?

A If you have been financially dependent on your spouse then it is possible for you to apply to court for interim spousal maintenance during divorce proceedings and long term spousal maintenance, if appropriate, once you are divorced. When you make your application the court will look at your income, income needs and that of your spouse and consider what would be a fair amount.

Q Throughout our marriage I have been saving a small amount of money every month in a bank account in my sole name without my spouse’s knowledge. Would this be classed as a matrimonial asset?

A Yes, matrimonial assets include all those assets in your sole name, your spouse’s sole name and your joint names. During the financial proceedings within the divorce, you will be under a duty to disclose all of your assets, including bank accounts held in your sole name.

Q Will the fact that my spouse committed adultery have an effect on the division of our assets?

A No, it is rare that the behaviour of a spouse is considered when dividing matrimonial assets, unless it is financial misconduct. As an example, this may include a situation in which the matrimonial assets have been reduced considerably as a result of one party’s significant overspending or gambling. 

Q My spouse has care of our two children, but I have regular contact with both children, do I still need to pay child maintenance?

A Yes, if you do not have care of the children then you will have to pay child maintenance. The amount you will need to pay is dependent on the number of children you have. It will be 15% of your net income for one child, 20% for two children and 25% for three children or more. It is possible for the amount owed to be reduced if you have the children for more than 52 nights per year.

Q My wife and I are divorcing and currently she lives in the matrimonial home with our children. Although I don’t want to lose any rights to the property is there any way that my children can remain in the home?

A Yes, it is possible to obtain a ‘Mesher order’ which would enable your spouse and children to remain in the former matrimonial home whilst you retain a charge over the property. When the children finish full time education or on the occurrence of another ‘trigger event’ which may include the re-marriage of your spouse, the property can be sold and you can receive your share of the proceeds. If you were to agree to a Mesher order you would need to ensure that you had sufficient means to re-house yourself until your interest was released in the property which could be many years later.

Q I have been married to my husband for 22 years and he has now issued divorce proceedings.  Our joint assets are worth in the region of £2,000,000 and my husband has told me that he will provide me with a house valued at £500,000 to meet my reasonable needs and nothing further. Is this what I would achieve if I issued court proceedings?

A  I would need to have full details of all of your assets, but my initial view would be that the starting point should an equal division of the marital assets.  In the past the courts have granted wives awards that simply meet their reasonable needs, but this changed in 2000 as this was considered discriminatory.  The starting point will now be that the assets are divided equally on the basis that this is fair for both parties of such a long marriage.

Q My wife and I separated 20 years ago and she has now contacted me through her solicitors and asked that I provide full details of my financial assets by way of a Form E.  Can she do this?

A When you divorce and resolve the division of your financial assets it is essential that you record the agreement reached by way of a clean break Consent Order to prevent your spouse making claims in the future.  If you divided your assets 20 years ago, but did not enter into a Consent Order preventing further claims then your wife can still issue her financial application for financial relief following the divorce.  On that basis the court can ask you to complete the Form E document. My suggestion is that you seek urgent advice over this issue.

Q My former partner has walked out and left me and our 3 children.  He is refusing to pay me any form of financial support. 
What can I do?

A You should immediately contact the Child Support Agency.  They will then carry out an assessment of his liability.  He should be paying 25% of his net income for the 3 children.  This may be reduced if he has them for more than 52 overnight stays per year. There may also be applications that you can make under the Children Act for further financial support.

For further information or advice relating to this article please contact: Claire Schneck on 01689 887828 or claire.schneck@cwj.co.uk