Divorce & Separation

If you have decided to separate, but do not want to consider a divorce for the time being, a separation agreement is strongly recommended.

Such an agreement sets out what you both agree should happen to the matrimonial home, and all the other assets such as savings and investments, endowment policies and pension funds. This means that there are no 'loose ends’ that can cause problems later. The courts can enforce all aspects of a separation agreement if necessary.

To obtain a divorce you must have been married for at least 2 years. 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:

• The adultery of your partner;
• The unreasonable behaviour of your partner;
• Your partner has deserted you;
• You and your partner have been living separately for two years or more and your partner agrees to a divorce;
• You and your partner have been living separately for five years or more.

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

No, you would need the other party's consent.

No. You cannot petition for divorce based on the grounds that you have committed adultery. Your spouse could petition on these grounds, or you could use other grounds for divorce most commonly unreasonable behaviour.

Yes, as long as you have not reconciled following the adultery for a period of six months.

Yes, provided that, prior to the date that your divorce petition is presented you are not living as man and wife ie separate bedrooms and not sharing any domestic tasks.

A typical divorce takes between 4 and 6 months. Much depends on whether or not your spouse responds quickly when he or she receives your petition, and whether he/she wishes to defend it. The divorce may also be delayed due to the division of matrimonial assets as it is best to completely resolve this before you apply for the decree absolute. Further the time frame will be effected if a Legal Aid application is merited.

Six weeks and one day. After this you can apply for the decree absolute.

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 Northern Ireland before they are commenced abroad.

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. Whether or not you will have to sell the house depends on a range of factors, such as:

• Your income;
• Your earning capacity;
• Any other property and financial resources which either you or your spouse own or are likely to have in the foreseeable future;
• Any financial needs, obligations and responsibilities which either of you have, or are likely to have in the foreseeable future;
• The standard of living enjoyed by the family before the breakdown of the marriage;
• Any physical or mental disability of either of you, or your children;
• The contributions which you have both made to the marriage, both in financial terms and also in looking after the home and caring for the family;
• The conduct of both you, if the court thinks it would be unfair to ignore it

There are usually three options regarding what happens to the former matrimonial home when the finances are divided on divorce. Either:

(a) You sell the house and split the proceeds according to pre-agreed shares. A 50/50 split may or may not be appropriate, depending on various factors, such as the length of the marriage, and the contributions made to the property. If you can’t agree on your shares, it is possible for the money to be held in a secure solicitors’ bank account until you can agree. In the meantime, the solicitor will have to account to both of you for any interest earned; or

(b) One of you keeps the house, and “buys the other out”. This means that you pay the other party a lump sum in return for the property being transferred into your sole name. This is effectively to compensate them for their share in the property, and allows them to put a deposit down on their own property if they want to. If you are considering this option, the party who keeps the house will need to see a mortgage broker to check that they can afford to take on the existing mortgage or that they have enough borrowing power in their own name to remortagge; or

(c) The sale of the house is postponed, and one of you remains in the property in the meantime. The person who leaves the house takes a charge over the property, which is usually expressed as a percentage of the total value of the property. The sale of the house will be “triggered” on the first to occur of certain events, usually:

• The death of either party;
• The youngest child reaching the age of 17 or finishing full time secondary education, whichever is the earlier; or
• The remarriage of the person retaining the property. As with option (b), the person remaining in the property should make sure that they can take on the existing level of borrowing, as often the person who leaves will need to get a new mortgage for their new property.
• Any financial needs, obligations and responsibilities which either of you have, or are likely to have in the foreseeable future;

So, whether you will have to sell the house or not depends on a number of factors that will need to be balanced against each other. Our specialist matrimonial solicitors will be able to guide you through the process and help you reach the right solution for your family.

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.

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.

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 childcare.

The highest court in the land's ruling in the recent case of Radmacher-Granatino gives legal status to the contracts for the first time in the country.

The judges said "decisive weight" should be given to the agreement signed before the marriage that Granatino would make no claims on the heiress' fortune.

However, Lord Phillips, president of the Supreme Court, said courts would still have discretion to waive any pre-nuptial or post-nuptial agreement, especially when it was unfair to any children.

When you marry your assets become ‘matrimonial assets’ and, unless specifically protected can be considered for division between you within divorce proceedings. The main purpose of a pre-nuptial agreement is to limit the potential claims on the assets of one of the parties to the marriage and avoid costly litigation over “who gets what”.

The Court will carefully consider things like:

• Did the party with the most to lose understand the nature of the prenuptial agreement?
• Did he/she have independent legal advice?
• Was he/she under pressure to sign?
• Was there full financial disclosure?
• Would an injustice be done if the prenuptial agreement were upheld?

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. Specific 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.

1. If you have decided to marry don’t wait till the last minute make it a priority in your wedding plans. An agreement signed on the way to your stag or hen party is less likely to be upheld than one carefully thought out and signed a month or so before.
3. Both parties must take independent legal advice. This avoids accusations, further down the line if things go wrong, that undue pressure was put on one party or the other to sign the agreement. It also means that both parties can ensure that the party with the most to lose understands the nature and implications of the agreement they are about to sign.
4. Full disclosure of each party’s respective financial positions must be made prior to the agreement being prepared.
5. Think carefully about the terms and make the agreement as precise, clear and detailed as possible.
6. Think about and decide upon how you would deal with changes in circumstance that may arise during the marriage. For example, if you are thinking of having children, loss of employment, inheritances, pension provision, and the acquisition of further assets and what would happen in these instances.
7. Also consider putting in reviews of the agreement at agreed periods during the marriage, the length of the marriage can have a bearing on whether or not the agreement remains enforceable and regular reviews of the provision can help with

Yes, the Civil Partnership Act 2004 gives you access to almost exactly the same procedure as divorcing couples. The only difference is that you cannot dissolve a civil partnership on the basis of adultery.

The same range of financial remedies are available to you as are available to divorcing couples, and this includes maintenance. Whether or not you are entitled to maintenance will depend on a range of factors such as your age, and earning capacity to name a couple.