Marriage and Divorce - Questions & Answers

Q: I am getting married, should I have a pre-marital agreement prepared?

A: Pre-marital agreements are currently not binding in the courts of England and Wales. However, in certain circumstances the terms of the agreement will be implemented upon divorce and the terms will always be of some relevance. If there is a significant difference in the financial contributions to be made to the marriage, then you should consider a pre-marital agreement.

Q: Do I have grounds for divorce?

A: To obtain a divorce you must have been married for 12 months. There is only one ground for divorce, namely that the marriage has irretrievably broken down. This must be proved by one of the following facts:

a. the adultery of your partner;
b. the unreasonable behaviour of your partner;
c. your partner has deserted you;
d. you and your partner have been living separately for two years or more and your partner agrees to a divorce;
e. You and your partner have been living separately for five years or more (and the consent of the other partner may not be required).

If you cannot establish these grounds then alternative proceedings may be available - nullity or judicial separation.

Q: When alleging adultery is it necessary to name the lover?

A: No, it is never necessary and is generally discouraged.

Q: My partner lives/works abroad. Can I start proceedings in England/Wales?

A: Yes, provided that you and/or your partner meet certain criteria relating to where you now live both on a physical basis and also where you intend to live. This can be very complicated and it may also be of great importance to start proceedings in England or Wales before they are commenced abroad.

Q: How much will it cost to get divorced?

A. Costs can vary dramatically from case to case. If there are arguments about finances and/or children, costs can increase, depending on the level of disagreement, and how much is resolved by agreement or co-operation between husband and wife.

Q: Am I eligible for Legal Aid?

A. The family team at TLT does not undertake publically funded work (which used to be called legal aid).

Please look at the website of the Legal Services Commission, who administers the scheme to help assess your eligibility. In the event that you do qualify for public funding, we are able to refer you to a solicitor who is able to undertake publicly funded work.

Q: How long does it take to get divorced?

A: A straightforward divorce will take approximately four to six months to be concluded. However, you may be advised not to finalise the process until financial matters have been resolved.

Q: What will happen to my pension?

A: On divorce the court now has the power to share a pension between husband and wife. This does not happen in every situation and on many occasions it will not be appropriate. Specifc advice will be required in each individual case. It is also sensible to obtain a forecast upon the state pension which can be done online at the Pension Service website.

Q: Will I have to sell the "family home?"

A: It is a possibility that the home will have to be sold. Again this does not always happen and there are a number of other possible outcomes such as one party buying the other party out or the home not being sold until the youngest child is aged 18. Again specific advice will be required in each individual circumstance.

Q: Will there be an equal division of the assets?

A: The law provides that a number of factors must be considered when deciding how to resolve financial matters between spouses. There is no presumption of an equal division of the assets and such a resolution will not be appropriate in all circumstances. However, the law also states that there must be good reason for departing from equality.

Q: What is mediation?

A: Mediation is a process that assists parties in reaching an agreement on financial matters (and other issues such as arrangements for children) in the event of separation. It is not a process aimed at achieving a reconciliation. Mediation will involve negotiations with a trained mediator in the absence of solicitors. However, even if you are attending mediation you will be encouraged by your mediator to complement the process with legal advice.

Q: What do I do about child maintenance?

A: If there are children from the marriage then it will almost always be necessary for child support to be paid. This will either be calculated by the Child Support Agency agreed or in accordance with their formula. The basic calculation, subject to contact arrangements and certain other factors, is 15% of net income for one child, 20% for two and 25% for three or more children. To calculate the potential amount visit the Child Support Agency website.

Q: Will I receive maintenance from my spouse?

A: It is possible maintenance will be paid in addition to any child support. This is a difficult area and involves careful analysis of not only the amount but also the duration of any maintenance. Alternative sources of income may also be available after separation, principally tax credits which can also assist with the cost of child care.