Divorce is one of the most stressful and emotionally difficult life events you may experience. Divorce support is therefore crucial. Getting the right divorce advice and assistance can help guide you through the process and the difficulties, of what can be an emotional rollercoaster.
Times are changing. We are seeing many more people issuing their own Divorce Petitions, particularly since the HMCTS digital revolution and the transition of court services online. This has made it easier for individuals to be, what is known as, ‘litigants in person’.
There is already a public perception that you can represent yourself in family law proceedings without the cost and potentially divisive influence of a solicitor.
But what are the benefits of seeking legal advice and being represented within proceedings during what is often, a difficult and emotional time, for those involved. Whilst completing a divorce petition may seem easy and the system now becoming very much a step by step paper based exercise, quite often the following question arise:-
What are my rights when getting divorced?
Do you both have to agree to a divorce?
Is dating during separation adultery?
Can I keep my house in a divorce?
Do you have to live apart to get divorced?
Can a wife kick a husband out of the house?
Can my wife take my house in a divorce?
How many years do you have to be separated to get divorced?
These are all common questions that arise when either considering separation or during the early stages of a marriage having broken down.
When you separate or divorce from your spouse, you may have a right to economic support or property. Your rights depend on different things, such as whether you were legally married, or in a common-law relationship, and if you have children.
It is often the perception that solicitors cause acrimony between the parties, however this is not the case. Every case and set of circumstances are different and there are times where a separation is amicable, with solicitors simply assisting the parties to legally implement any decisions they have reached between themselves. However, more often than not, relationships are strained and one party will find the breakdown of the marriage more difficult than the other, often having their decisions and judgements clouded, as a result of their emotions. The emotion and bitterness that entwines matrimonial proceedings can be difficult for some clients to disentangle. Pragmatism and objectivity become lost and sensibilities vanish.
We recognise at Curtis Whiteford Crocker Solicitors that few clients wish to go to Court and it is often the case that litigious proceedings would not, in fact , assist either party. We therefore look to encourage cases to be pursued and resolved in a non-antagonistic and constructive manner.
Whilst the process of obtaining a divorce may seem simple, the question of the assets arising from the marriage and how these are to be divided will need to be addressed. It is a common mistake made by litigants in person, in that they believe that upon obtaining the Decree Absolute, matters have been dealt with and are complete with no further ties to their, once, spouse. This is not however the case.
Divorce proceedings and the matrimonial finances are two separate sets of proceedings and therefore, until such time as the matrimonial finances have been addressed and finalised, either by way of a Consent Order or Final Order of the Court, the matrimonial finances remain open, even upon the pronouncement of Decree Absolute.
Therefore, in order to prevent any future claims being made, should your circumstances change, it is possible to enter into a Consent Order whereby you each agree that all financial claims each of you may have against the other, in respect of the marriage, are dismissed and that you each keep what property you now have in your possession. Further, it also dismisses any claim either of you may have against the estate of the other.
It is important to understand that there is only one ground for divorce, that being the irretrievable break down of the marriage. In order to prove this ground, one of five facts can be relied upon namely:-
Two years separation with consent;
Five years’ separation.
The procedure for divorce is to file the Petition at Court based upon the fact relied upon.
Following the pronouncement of Decree Nisi, it is possible for the Court to make an Order, either by consent or following a contested hearing, in regard to any financial issues there may be between you. The Order would not take affect until Decree Absolute.
Another issue that is often not thought of or forgotten is ff you and your spouse have Wills. Following the breakdown of the marriage you might wish to consider changing your Will, particularly whilst divorce proceedings are continuing. Further, following Decree Absolute any existing Wills you may have leaving your money to your spouse will be affected and therefore, it is advisable to have a new Will drawn up at this time.
It is often found that the biggest challenge is ensuring that litigants in person understand the process and where they are within it. Often litigants in person feel that they are at a disadvantage not having the benefit of legal representation and advice, particularly, when the other party does.