Relationship Breakdown
It’s not an easy time. You need clear advice about what happens next: arranging provision for the children, the house, money, understanding the court process and what’s involved.
Divorce
One party to the relationship lodges the Petition and becomes the ‘Petitioner’. The other party responds and becomes the ‘Respondent’.
The Petition
This is a document submitted to the court, which can only be submitted after you have been married for 12 months, giving the grounds for the proposed divorce – this can be unreasonable behavior, desertion, adultery, 2 years separation (with the other party’s consent) or 5 years separation (without the other party’s consent).
Unreasonable behaviour
There’s no hard and fast definition of what is ‘unreasonable’ – just behaviour that the other party considers unreasonable. If this is in a petition laid against you it can be very upsetting – just remember that the other person wants it to look as bad as possible to ensure the court grants the divorce.
Stages of Proceedings
If the Court is satisfied that the grounds put forward in your petition are made out then they will grant a decree nisi. Six weeks later, if you are still sure that you want to seek a divorce, you can then apply for the decree nisi to be made absolute. If you have not issued the divorce and the other side does not apply for the decree absolute you can apply after 3 months has elapsed.
If there are finances of the marriage to resolve then the decree absolute should not be applied for until such time as they are resolved. If they are not and somebody becomes married then this may affect any arguments you may make in respect of your entitlement to some of the assets of the marriage.
Arrangements for children
Wherever possible, you should try to make arrangements between yourselves for the children: who sees them when, for how long, where they will be picked up and dropped off, whether to have overnight stays and holidays, what to do at Christmas and New Year? If you can reach an agreement, let us know and we’ll formalise the proposals into a document for the court. If you can’t reach an agreement with your ex-partner we’ll make proposals on your behalf and proceed with negotiation.
Interests of the children
Always try to put the children’s interests first. It’s very important not to use them as weapons in the battle between the adults. The court will always consider the interests of the children to be of paramount importance.
Property of the Marriage
This can cover any assets or debts of the marriage which will need to be resolved and includes such things as your home, savings, credit cards, loans and pensions.
Your Home
This is often the asset of the largest value held in common. We will need to evaluate with you whether there is any equity in the home. Decisions have to be made about how to divide the value of the property and whether it needs to be sold. We will advise you how best to protect your interests and help you reach agreement on all property and questions.
If your home needs to be sold, this may take some time to achieve and you may be left on your own trying to maintain any payments whilst your partner has moved out. If you cannot sustain the payments for your family home then an application can be made to the court for maintenance pending suit so that we could seek an order for your partner to pay you a sum each month to help you discharge the costs of the family home whilst your divorce is finalised.
Pensions
If only one of you has a pension, which you have contributed to as a couple to provide for your future, then the Court could consider making a pension sharing order. This would allow the non-pension holder to receive a share of the pension when payment upon it commences.
Debts
If there is equity in a home after sale or there are savings the Court could order that debts of the marriage are paid prior to the division of the martial assets.
Debts are very difficult to deal with if there are no assets of the marriage as the Court is unable to interfere with contractual obligations between you and the credit provider.
Mediation
Mediation is often used when 2 people are willing to enter into a discussion about how they can resolve the breakdown of their marriage.
A referral can be made to a professionally trained mediator to resolve issues with regards to the finances and/or children of the marriage in an attempt to reach an agreement that you can be comfortable with.
If an agreement is reached, this can be drawn up into a consent order, which can be sent to the court on your behalf at the decree absolute stage of the proceedings so it protects your agreement.
Not married?
We’re happy to advise in respect of co-habiting or same-sex relationships. Apart from the court process the decisions that have to be made are very similar. Questions of legal ownership and rights are slightly different and will be advised upon in relation to individual circumstances.
Will you need to go to court?
If you and your ex-partner are unable to agree it may be necessary to go to court to argue your case.
Support in Court
We will have our legal team on hand at court to fight for your rights and explain how the case is developing. You’ll have someone to turn to at every stage and ask questions or raise points for consideration.
Contact and Residence
Contact
If you have a child and the other parent of the child is prohibiting you from seeing him/her then you may need advice on this issue.
We can enter into correspondence with the other parent on your behalf and put forward proposals on your behalf.
Should the other parent not agree to our proposals or offers you an unreasonable level of contact then we can refer you to an independent mediator to assist you.
If this process also fails to reach an agreement, then we can make an application to the Court on your behalf for a Contact Order
The starting point for any Court in considering contact is that every child is entitled to a relationship with both parents provided it is safe and their welfare would not be adversely affected.
If you have been violent to the other parent, abused drugs/alcohol or have previously been uncommitted to contact, then we may have to persuade the Court that you have changed. This may mean you having supervised contact initially or undertaking tests to prove that you are no longer abusing substances.
Ultimately, if an agreement cannot be reached at Court, then the Court can make the decision for you. If you breach an order of the Court, steps may be taken against you to ensure it is complied with in the future.
Residence
If you are in dispute with another parent about where and with whom a child should live, then you may need to make an application to the Court for a Residence Order. Such an order will confirm whom the child should live with.
If a child has primarily lived with one person, the Court will be reluctant to change the child’s residence unless there are strong welfare grounds put forward to justify it.
