Divorce Lawyers in London

Common Divorce Questions

• Do I need to provide a reason for divorce?

  Yes, you need to prove that the marriage has broken down and it would be difficult to mend the relationship. Common reasons for a divorce include:

  • adultery
  • unreasonable behaviour
  • desertion (for at least 2 years)
  • separation for 2 years and an agreement to the divorce from both spouses
  • separation for 5 years

  Incompatibility with your spouse or ‘irreconcilable differences’ are not accepted as grounds for a divorce. In such cases, it may be possible to establish unreasonable behaviour for example being emotionally distant or abusive.

• What is included in unreasonable behaviour?

  You can get a divorce if your spouse behaves in a manner that you cannot be expected to live with. This can include the following:

  • violence and/or verbal abuse
  • aggressive behaviour and threats
  • abusing drugs or alcohol and displaying irrational behaviour as a result
  • being financially irresponsible

  It can also include less dramatic matters such as:

  • lack of sex
  • lack of emotional and financial support
  • being disrespectful or unreasonable

  It is common to list a combination of such matters in your divorce proceedings.

  If you use such reasons in your divorce petition, you should expect your relationship to worsen as a result as your spouse will get offended and be upset with your allegations.

• How long do I need to be in a marriage to seek a divorce?

  You have to be married for at least 1 year before you can get a divorce.

  If your marriage breaks down during the 1 year period, then you may want to separate in the meantime. This will give you time to agree to various issues such as financial arrangements, children and other matters.

• Who can file for divorce?

  When it is the end, either party in a marriage can file for a divorce. The person that does is called the ‘Petitioner’ and the other party, the ‘Respondent’. It often happens that both parties want to file for divorce and whilst both can do so, only one petition will succeed and which one it is, is decided by the court.

  Read the complete post here.

• Do we have to try mediation or counselling before applying for a divorce?

  Divorcing couples are usually expected to consider mediation before starting the divorce process. This would help you resolve the emotional side of the break-up, which is helpful if only one person is looking to get a divorce.

  Counselling helps you understand each other’s feelings and may take some hostility out of the break-up. This would make it easier to negotiate an agreement.

  In some cases, counseling may encourage you both to give the marriage a second chance.

• Do I have to use a solicitor to get divorced?
• What if my spouse refuses to sign the papers?

  By far this is the most common problem experienced by someone who has petitioned for a divorce. Lack of co-operation by the other party can add significant delay and extra costs for the Petitioner. In fact once the petition is issued, it is a legal requirement for the Petitioner to prove that the papers have been served on their spouse so that s/he is aware of the proceedings and given an opportunity to reply. So what can a Petitioner do if their spouse refuses to sign the papers or in fact has gone awol?

  Read the entire post here.

• How long does divorce take?

  When you have decided that it’s time to sever the knot, this is the million dollar question. To give you an answer, we thought it would be helpful to outline the process and steps you would need to go through and a general indication of roughly how long each step could take in the order that they are taken:

  Read the entire post here.

• What information will a solicitor need to start a divorce proceeding?

  A solicitor would require as much information as possible to understand the background to the divorce. They would need information on financial assets, children and other relevant matters such as properties. The information you provide should include:

  • The basis for your divorce for example adultery, unreasonable behaviour or separation
  • Who is applying for the divorce and whether it has been agreed between you and your spouse
  • The major assets that you and your spouse share include savings, pensions, houses, and others.
  • You and your spouse’s income and outgoings are;
  • details of any dependent children (under the age of 18, still in full time education, or having special needs)

  The more information you have, the easier it is for your solicitor to understand the circumstances and to advise you. If your solicitor has to do a lot of work in terms of gathering information, contacting the spouse’s solicitor, it will only delay and make the process more expensive.

  You should also let your solicitor know your major objectives out of the divorce for example, keeping the children, or having reasonable contact with them, keeping the family home etc.

• I am not named on the title deeds to our home. Does that mean I have to leave if we separate?

  If you are not on the title deeds to your main family home, then you may still have rights of occupation in relation to the family home on the basis of your marriage. These rights are referred to as ‘home rights’ and in essence mean that if you are already living in the home, then it is a right not to be evicted and if you are not living there, then it is a right to resume occupation. One of the ways to secure this is to apply to the Land Registry for a charge to be placed on the title register which will ensure that should the owning spouse decide to sell or transfer the home, then a prospective buyer is alerted to the fact that there is someone who has a right to occupy the property. The charge placed on the title register acts as a red warning light to interested buyers and will almost always put them off giving time for the parties to resolve their differences.

  For those who are unmarried, you could apply to the court for an ‘Occupation Order’ which when granted, will regulate the terms of occupation for the parties in the home. The class of applicants include same sex couples and ‘associated persons’ who also include former partners and relatives. Other ways to remain in occupation include establishing a licence to occupy – similar to a tenancy, establishing an interest as a tenant in common or applying for a court Order under the Children Act if there are minor children.

  Not being named on the title deeds does not mean no right to occupy. Know your rights and get legal advice of your options.

• My spouse/partner is the named owner on another property. I am worried they will sell or transfer it. What can I do to stop this?

  Preventing dealings with a property in which you have no legal interest i.e. you are not named on the title deeds is not an automatic right for the non-owning person as the legal owner is permitted by law to do what they please with their property. There is an evidentiary requirement on the claiming party to establish an ‘interest’ in the property based on certain trust principles laid down by the Law of Property Act. The behavior of the parties should enable the relevant authorities to draw the necessary inferences to satisfy themselves that an intention to share the property existed. Only then will an application to protect such a third party interest be entertained. So how can you prove an intention to share existed?

  Well, this could include acts such as contributing towards the purchase price of the property, making a substantial contribution towards the improvement of such property, evidence as to the agreement or arrangement the parties had as to ownership, the financial arrangements the parties had and details of acts of detriment and/or reliance on the conduct of the owning spouse/partner.

  Preliminary applications can be made to the Land Registry for the registration of a Restriction or a Notice, both being an entry on the title deeds, both having different effects and both affording some protection to the applicant against a prospective buyer. A more long term and permanent solution is to apply to the court for an Order for the appropriate declaration to be made.

• What is the difference between legal and beneficial interest?

  Land and property is owned in 2 ways – either by holding the legal interest or the beneficial interest.

  Legal interest – If you are named on the title deeds in any way, then you own the legal interest to that property. This is clear cut. Owning the legal interest gives you a right to control that property so you can sell or transfer it how you please. It is also a right to possess and occupy the property.

  Beneficial interest – There are any instances when ownership of a property can’t be reflected in the title deeds for a variety of reasons nonetheless, there is a claim to the financial benefit of the land and such a claim is towards the beneficial interest. Such a claim could arise in a number of situations whether by agreement between the owning and non-owning person, by default in reliance on a particular course of conduct between them or even through the parties behaviour.

  It is important to differentiate between who owns the legal and beneficial interest in land as on the one hand, there may be 2 owners named on the title deeds indicating an equal share of the land, however they may both agree that they own the land in unequal shares. Situations can also arise where the legal owner holds the property on ‘trust’ for the real or beneficial owner, a common arrangement in family situations.

• My spouse has transferred his assets to his family member to avoid me getting it. What can I do?

  The court has powers to prevent a spouse from evading his obligations by divesting property and income to third party or by transferring it out of the country. If the disposition is about to be made, the court has power to stop that transaction or if the disposition has already been made, the court has power to set aside that transaction.

  Applications are made within existing family proceedings under the Matrimonial Causes Act. The Applicant has to show that the spouse at fault is about to make a disposition or to transfer out of the jurisdiction or otherwise deal with a property with the intention of defeating a claim for financial relief. In the case of a disposition already made, there is an additional requirement for the Applicant to show that had the transaction not taken place, the Applicant would have been granted some kind of financial relief or a different type of financial relief if such was already granted.

  The court is mainly concerned with the subjective intention of the party at fault and it has to be proven that it was the main, not necessarily the whole, intention to prevent the Applicant from benefitting from such assets being disposed. Such intention can be difficult to prove and the circumstances of the parties has to be carefully analysed. Indeed, such behaviour by the party at fault can be regarded as bad conduct and will inevitably contribute towards the court’s ultimate decision on a final award.

  In practical and real terms, it may not be cost effective to pursue a court order as described above to recover an asset that has already been disposed of and most people will consider off-setting the economic value of the lost benefit against another asset, if there were such assets within the matrimonial pot.

  As soon as you suspect that your spouse’s intentions are not quite right, take immediate action.

• I was the main carer for our children. Now I have few skills and limited job prospects. Shouldn’t I be compensated?

  Most relationships require a certain level of compromise and sacrifice on the part of both parties yet more often than not, one party will give up more than just their money for the greater good of the family.

  In any type of financial proceedings, the court must have regard to a range of factors set out by law, one of them being the contributions each party has made or is likely to make in the foreseeable future to the welfare of the family. Such contributions are not only financial but also include looking after the home or caring for the family. Only when taking both financial and non-financial contributions into account, can there be a fair settlement, truly reflective of the parties input to maintaining the family without any form of discrimination between a home maker and a breadwinner.

  A spouse may decide to leave their job or work part time to look after young children. Inevitably, this will impact on their career whilst allowing the other spouse to continue flourishing in theirs. Perhaps the person that gave up their job was in a well paid senior role with future potential for promotion all of which would have been lost. The same spouse should not be penalized when a settlement is being negotiated by having decided to sacrifice a career to look after the family.

  The earning spouse may claim that as they earned the income which led to the building up of the family wealth i.e. that they made an exceptional contribution, this should be reflective in a final settlement by awarding them the majority share. However, such is not an argument accepted by the courts unless the contribution made was indeed so exceptional that it would be inequitable to disregard it. The non-earning spouse can certainly advance an argument for an equal or even larger share of the assets and ongoing financial support post the divorce based on the sacrifices made and lost opportunities.

  Taking the point a bit further, in the recent case of RC v JC (2020), the court found that a wife had suffered a significant relationship generated disadvantage (by giving up a successful career to look after the family) which entitled her to an award of compensation having successfully proved that a loss had been suffered.

• My family helped us buy our family home. How can they protect that from any claims by my spouse?

  This is a common scenario in many families where parents or indeed other senior family members help a couple to buy their family home. A lump sum to the couple could have been made by way of gift or by way of loan. Either way, what is not so common is to document the agreement or intention. Understandably, within an informal familial setting, a conversation about owing or not owing money can sour relations or at the very least, make things awkward. Whatever the feelings, it is essential that such conversations are had to make clear the intentions behind the advance from the perspective of the donor leaving no room for ambiguity.

  Whether a family member is about to give away their money or has done so already, there are certain things you can do to ensure that the gift is protected from any claims made by your spouse in the event of a divorce.

  1. Trust Deed – both parties should consider entering into a Trust document recording their intentions. It should make clear that the gift was by way of loan repayable at some point in the future. The deed should be signed and independently witnessed.
  2. Legal Charge/Notice/Restriction – these are a recording of a third party interest on the title register for a property. It is indicative to a prospective buyer that that there is a third party who is claiming an entitlement to a share of the property meaning that the legal owners are not the only people who can benefit.
  3. Become a co-owner – The parties could consider adding the name of the giving party to the title of the property which would legally take their gift outside of the marriage. Owning the property in this way has pros and cons and careful thought should be given before this is considered.
  4. ‘I owe you’ – the receiving party could give a simple ‘I owe you’ document which would certainly help as evidence when advancing the argument in court.
• I paid for the renovations/extension/new loft/overpayments on the mortgage etc. Why shouldn’t I get that credit back?

  The effect of marriage on your finances is such that everything the couple have is pooled into a ‘matrimonial pot’. This does not mean that everything is actually shared on a day to day basis however it is believed that the intention behind the union is to share everything they have unless a particular asset is specifically excluded for example, by a pre-nuptial agreement. As time progresses, financial wealth is generated within the marriage and this may be through the efforts of both parties or only by one.

  The law does not discriminate between the types of efforts made by a home maker or a bread winner to maintain a family i.e. financial and non-financial contributions. Every effort is recognized. Indeed young children play a significant part in the changing roles of the couple and it is usually the case that one party may need to devote much of their time to care for young children especially during their early years whilst the other works. In the case of the latter, they would be in a much stronger position to pay for works to a family home because of the choices made by the couple to enable him/her to work. It would then be unfair to say that the accumulation of such wealth should be credited only to that person and not the family as a whole who presumably were the intended beneficiaries of such efforts were it not for the breakdown of the marriage. So why should it be any different if the marriage fails?

  All wealth accumulated within the marriage is taken into account when distributing assets on breakdown of a marriage. How such is actually quantified is dependent on a whole range of factors that the court takes into account ensuring that each case is decided on its own facts and fairness (which is not necessarily equality) is achieved.

• I used my inheritance to buy our house. Why should my spouse benefit from that money?

  Assets that were inherited before or during the marriage will more often than not be sought to be ring-fenced or excluded form the matrimonial pot. Whilst there is no reference made specifically to inherited assets within the law, certainly inheritance prospects are taken into account although little weight will usually be given to it especially in a case where a party’s financial needs cannot be met without recourse to such a resource. Thus, whether a non-matrimonial asset is likely to be significant or not depends on whether the remaining assets are sufficient to meet the needs of the parties.

  Having said that, the court, in the famous case of White v White 2000 expressed its views on this issue that inherited property (and property owned before marriage) should not be treated in the same way as property acquired during a marriage and that the other party will have a weaker claim to it. Although the court will take it into account, much depends on the nature and value of the asset and when and the circumstances in which it was acquired.

  It is generally the case that in shorter marriages, the argument to protect inherited property or property acquired before the marriage carries more weight. It follows therefore that in longer marriages where the parties finances have become intermingled or entangled over time, it would be very difficult to differentiate between the different categories of assets by reference to its original source. Certainly, inheritance prospects cannot be excluded from consideration if it were needed to be taken into account to meet the basic needs of the parties and those, in the first instance of dependent children.

• My spouse is refusing to disclose the full extent of his/her assets. What can I do?

  Where a party deliberately chooses not to disclose information or documents which they know they ought to disclose, then such non-disclosure is classified as fraud. It also becomes a material fact if the non-disclosure leads to the deprivation of the other party of a greater share of the assets.

  In any financial case, both parties are under a duty to disclose their assets by being full and frank. This means disclosing the extent and nature of their assets not only at the beginning of investigations but throughout the life of the case especially given that values of assets fluctuate over time. It is not for the party concealing the assets to decide whether the asset would make a difference to a final award but rather this is for the court to decide. Indeed it may be the case that the undisclosed asset would have eventually made no difference to the final settlement but the party with ownership of it is still dutybound to give details of its existence.

  So what can be done if your spouse still flaunts the rule? It would be up to the claiming party to provide the necessary evidence and this could be by way of bank statements or other old papers making reference to such an asset or conversations between family and friends of its existence. The claiming party could hire a private investigator perhaps in a case where the non-disclosing party is leading a lifestyle that is not commensurate with his/her lifestyle – further indication of having assets that s/he has not disclosed. If such investigations bear any fruit, then the party at fault could be penalized by way of costs and any final orders already made are subject to being revisited and eventually varied.

• We are a young couple, had a short marriage and no children. Why should there be any type of settlement to either?

  In deciding the type of settlement to either party in a divorce, one of the factors the court takes into account is the age of the parties and the duration of the marriage. The age of both parties will generally impact other factors also taken into account such as their earning capacity, contributions made and their needs. So a younger couple may not have developed that dependency on one another and remain sufficiently independent compared to an older couple.

  Where the marriage breaks down when the couple are young, it may be reasonable to have a ‘clean break’ from one another immediately on divorce where there are no children and the court would expect both parties to make their way in the world on their own. Furthermore, younger spouses are more likely to be able to borrow money than older spouses and this is taken into account when considering lump sum or transfer of property orders.

  With regards to the length of the marriage, on the face of it this may be short however, pre-marital cohabitation is taken into account as a relevant factor and certainly in some cases, a couple may cohabit for 20 years then marry and the marriage subsequently breaks down within a few years. It would be unfair to ignore the duration of the full relationship so the totality of the years together are what matters.

  The longer the marriage, the more likely each party would have contributed to it and the harder it will be for them to achieve independence when it breaks down. In shorter marriages, the same level of financial dependency has not yet been established and so a clean break with no settlement or either spouse is reasonable. Having said that, where children are present, then the length of the marriage is far less relevant as the children’s carer is likely to have considerable financial needs which will trump other principles.