How long does it take to get a divorce?
The quickest a divorce can be usually be finalised is 4 to 6 months. The timescale can depend on whether your spouse co-operates with the procedure. In all cases, the divorce petition will be sent to your spouse by the Court and your spouse will need to complete and return a document known as an acknowledgement of service. If they do not do that you will need to instruct a process server to hand deliver copies of the divorce documentation to your spouse. This can add to the timescale and the cost of the proceedings. Sometimes, there are backlogs at Court which can also add to the timescale. A delay at Court of around 10 working days for dealing with incoming mail is not unusual.
After your spouse has returned their acknowledgement of service to the Court (or you can prove that they have received the papers) then you will need to apply for your conditional divorce which is known as the Decree Nisi. After you send your application to the Court it usually takes the Court around 3 to 4 weeks to send you a document known as a Certificate of Entitlement. This Certificate says when your Decree Nisi will be pronounced – it is usually around 3 weeks after the date of the Certificate of Entitlement. You then have to wait for a minimum of 6 weeks and 1 day before you are allowed to apply for your final divorce which is known as the Decree Absolute. It tends to take the Court around 1 week to deal with application for the Decree Absolute.
Will I have to go to Court to get a divorce?
It is highly unlikely that you will ever need to set foot inside a Court room to get a divorce. Provided matters are agreed then it should merely be a case of paperwork. Sometimes, a Judge can ask you to attend at a short hearing if there is an argument concerning who should pay the costs of the divorce proceedings but that is unusual. If your spouse decides to defend the divorce then it is likely that there will be one or more Court hearings but defended divorces are extremely rare and the percentage of defended cases that actually reach the stage of a fully contested hearing at Court are few and far between.
If there is a dispute concerning financial matters or the arrangements for any children then it is more likely that you will need to attend one or more Court hearings but there are a number of options such as negotiations through Solicitors and Mediation which can be used in an attempt to avoid Court proceedings.
What can I do if I don’t know where my husband or wife is living?
When a divorce petition is sent to the Court you will be expected to provide the Court with an address for your husband or wife. If you do not know where they are and you cannot find out through the usual channels of contacting their friends and family then we can instruct specialist tracing agents to search for them using various databases that they have access to. Our tracing agents have very reasonable rates and they will not charge you anything if they are unable to locate your spouse.
In some cases it is not possible to locate the other person at all. In these circumstances you might want to try serving them with the divorce papers via a third person such as a close relative, friend or even through their place of work. However, it is still your responsibility to ensure that your husband or wife has received the papers. If there is still no indication that they have received the paperwork then you might want to think about applying to the Court for something known as substituted service. You will need to prove to the Court that you have done everything in your power to inform your spouse of the divorce proceedings. As well as taking the steps mentioned above, you could place an advertisement of the divorce proceedings in a newspaper; you could try to use a process server (they often have access to extensive databases to discover a person’s whereabouts) or you could even try serving your spouse on social media.
You should then talk to a Solicitor about how to apply for substituted service as it is quite likely that a Court hearing will be required.
Who pays for the divorce?
When you start divorce proceedings you will be asked to pay a Court fee upfront. In addition to the Court fee there will be legal fees due to your Solicitor. In your divorce petition you will have the opportunity to tick a box asking the Court to order that the Respondent (your husband or wife) pays the costs of the divorce case. Note that these costs will be separate to any costs that you incur with your Solicitor to deal with financial matters or issues concerning children.
If you tick the box saying that you want to claim costs then your husband or wife will have the opportunity to say whether they object to paying your costs when they complete their acknowledgement of service. They will need to give a reason for their objection. It is often agreed that the costs will be shared equally or that the claim for costs will be dropped altogether provided your husband or wife co-operates with the process.
When you apply for your conditional divorce (known as the Decree Nisi) you will need to complete a statement saying whether you still intend to ask the Court to order that your husband or wife should pay the costs. At that stage, you can ask the Court to order that they should pay a fixed amount, a percentage or your costs, the full amount or nothing at all. When the Judge considers all your paperwork and decides whether or not to give you a certificate saying that you are entitled to a divorce, then he or she will decide whether to grant you a costs order. This is entirely at the Judge’s discretion and the practice of awarding costs orders seems to vary from Court to Court and from Judge to Judge.
Note that sometimes, a Judge can ask both parties to go to a short hearing at Court to decide whether a costs order should be made. If you intend to ask your Solicitor to represent you at such a hearing you should make sure you understand the possible consequences in terms of having further costs to pay them for representing you which you might not recover and also the possibility of you having to pay the legal costs of your spouse’s representative if you lose at Court.
Note that even if the Court has ordered that your spouse should bear the legal costs, you will still be responsible for covering your Solicitor’s fees as they have a contract with you. You will then need to look to your husband or wife to reimburse you. If they fail to do so you should speak to your Solicitor about possible enforcement proceedings.
How much will I have to give my husband or wife if we divorce?
In family law, there is no set rule which says how much your spouse should receive or how much you should receive upon separation. The starting point is usually 50/50 but there is an overriding objective of fairness. The Court will determine what is fair in your particular case by looking at something called the “Section 25 factors”. These include the following:
- The income, earning capacity, property and other financial resources of both parties.
- The financial needs, obligations and responsibilities of both parties.
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The ages of the parties and the duration of the marriage.
- Any physical or mental disability of either party.
- The contributions of both parties (both financial and non financial).
- Any conduct that would be inequitable to disregard.
- The value of any benefit (such as a pension) which either party will lose the chance of acquiring as a result of the divorce.
The Court’s primary concern will always be the welfare of any children and the Court will be keen to ensure that they have a roof over their heads and that there is as little disruption to their lives as possible. It is therefore quite normal to see cases where the parent who will have the children living with them for most of the time receives the most in terms of financial provision.
Can I force my husband or wife to leave the family home?
It can be hard to force your ex-partner out of the house, particularly if it is in joint names. If a person is named on the deeds to a property, they usually have a right of entry and occupation. If you merely change the locks to try to exclude them then that person can force entry and they cannot be prosecuted for criminal damage to their own property. If your husband or wife has been abusive and/or violent then it might be possible to apply for a non-molestation injunction and an occupation order through the civil courts. The occupation order can exclude your ex from the home for a set period of time (usually 12 to 6 months) and it can be extended in certain circumstances. Alternatively, if there has been violence and/or abuse, you could use the criminal justice system. You could telephone the police to report your spouse’s behaviour and if the police feel that they have sufficient grounds upon which to charge your ex then they might be released on bail and one of the bail conditions might be that they should not return to the home.
In the absence of any abuse or violence, it is quite likely that you will have to wait until financial matters have been resolved in your case before you can force your husband or wife to leave.
What are the grounds for divorce?
The only ground for divorce is that the marriage has irretrievably broken down. Irretrievable breakdown can be proven in one of 5 ways and you will choose which divorce petition suits your case depending on which of the following applies in your case:
1. Your spouse has committed adultery and you find it intolerable to live with them
Adultery is voluntary sexual intercourse between a man and a woman. You should only prepare a petition based upon your spouse’s adultery if they will sign a form admitting to it. Otherwise you will have to prove that they have committed adultery and this can be notoriously hard to do. Also, if you have continued to live as husband and wife for 6 months or more following your discovery of the adultery then the Court will not accept that you find it intolerable to live with your spouse and the case is likely to be rejected. You might still be living under the same roof for 6 months or more after finding out about the adultery but it is important that you are living separate lives (e.g. you are doing your own washing, cooking and cleaning and you are sleeping in different beds).
2. Your spouse has behaved in such a way that you cannot reasonably be expected to live with them
This is the most commonly used fact. It can include things such as lack of love and affection, lack of interest in a physical relationship, failure to help out around the home, shouting during arguments, inappropriate relationships with third parties and abuse.
3. Your spouse has deserted you
It is extremely rare for this fact to be used. You will need to explain to the Court that your spouse has left you without good reason and without your agreement and with a view to them ending the relationship. Your husband or wife will need to have left you for more than 2 years in the last 2.5 years.
4. You have lived separately and apart for in excess of 2 years immediately before the divorce petition is sent to the Court and your husband or wife consents to the divorce.
Before sending a petition to the Court based on this fact, you should always check that your husband or wife is going to consent to the divorce. If they will not give their consent you will have to use one of the other facts. You can be classed as living separately and apart even though you are both under the same roof provided you have been living separate lives (e.g. sleeping in separate rooms, socialising separately, managing your own finances separately and being responsible for your own cooking cleaning etc).
5. You have lived separately and apart for more than 5 years immediately before the petition is sent to the Court.
In this instance you do not need your husband or wife to consent to the divorce.
Is it adultery if we have already separated?
If you have voluntary sexual intercourse with a person of the opposite sex at any time before you or your spouse has been granted a final divorce then in the eyes of the law you are committing adultery. You should understand that committing adultery is unlikely to have any bearing on the outcome of your financial settlement and nor is it likely to have any effect on the outcome of a Court case concerning the time that you should get to spend with your children (unless your new partner poses some sort of risk to your children’s welfare).
What can I do if my partner leaves and stops paying the bills?
If your partner leaves then you should firstly see whether you might be entitled to any financial help on the basis of you being a single person. This could include a (greater) entitlement to tax credits or other benefits, a Council tax discount based upon single occupancy and if you have children living with you could ask the Child Maintenance Service to ask your ex-partner for financial support (assuming he or she fails to provide support voluntarily).
In terms of utility bills then the person who leaves the home can often telephone the utility providers and ask to have their name removed from the account. Your entitlement to financial support from them for your own benefit then depends on whether you are married or not. An unmarried partner has no right to claim financial support for their own benefit from their ex partner. However, a married person can apply to Court for something known as maintenance pending suit. This is monthly financial support for the receiving party but it is only temporary until the Court can look at the overall financial position and determine what the settlement should be.
Whether you are married or not, a person cannot remove their name from the mortgage without the consent of the other party or an order of the Court. It is not usually the case that two people named on a mortgage are liable to pay 50% each towards the monthly mortgage instalment. Both parties will be as liable as one another to pay 100% of the monthly instalment meaning that if the mortgage falls into arrears then the mortgage company can pursue either party separately or both of you together to repay the arrears, regardless of who remains living in the home.
Are Pre-Nuptial Agreements legally binding?
A Pre-Nuptial Agreement is a document that is entered into voluntarily by two people before they marry. It can be used to record who will receive what in terms of financial provision in the event that the marriage breaks down. At the present time it is not possible to tell any client that their Pre-Nuptial Agreement will be legally binding. However, there are certain things that can be done to make it more likely that both parties will be expected to abide by the terms of the agreement if there is a dispute in the future. These include the following:
- Both the Husband and Wife should take independent legal advice from the outset.
- Both the Husband and Wife should provide full and frank disclosure of their respective financial positions before the agreement is entered into.
- Neither party should be placed under any pressure or duress to enter into the Agreement.
- The Agreement should be entered into at least 21 days before the date of the marriage.
- The Agreement should be fair and realistic (i.e. it should not be too far removed from what a Court might be expected to order of its own volition if the marriage broke down).
- There must have been no significant change in circumstances which would render the Agreement unfair. This could include for example the birth of a child or one party becoming disabled.
More and more Pre-Nuptial Agreements are being upheld by the Courts. It is important that even after they have been entered into, they are reviewed and amended regularly to take account of any changes in circumstances and to ensure that they are still fair.
Can my ex-partner stop me from seeing my children?
When two people share parental responsibility for a child they are both allowed to make decisions concerning that child’s welfare and upbringing. Sometimes a situation arises whereby one parent does not feel that it is in the child’s best interests to spend time with the other parent. In some circumstances the underlying reason for this is revenge as opposed to any real concern for the child’s welfare and it early intervention is therefore needed to ensure the status quo does not become a situation whereby one parent is not seeing their children at all.
Once it becomes apparent that you are not going to agree matters between yourselves you will need to think about taking more formal action. Sometimes a Solicitor’s letter is all that is needed to prompt your ex partner into believing that you are serious about taking more drastic steps unless you are allowed to see your children.
If this does not work then you should consider Mediation (see our page explaining how Mediation works) and if Mediation is not suitable or it does not result in an agreement being reached you will need to think about going to Court. Whilst Court should be treated as a last resort, it is sometimes the only viable option because the only person who can legally force your ex partner to allow you to spend time with your children is a Judge.
How long will it be before I can see my children?
If we cannot reach an agreement with your ex-partner by way of correspondence then we can make a referral to an independent person known as a Mediator. We should know from them within about 14 days whether or not Mediation is going to be an option in your case. If Mediation is not an option then the Mediator will provide a document which allows you to start Court proceedings. The first Court hearing is likely to take place about 4 to 6 weeks after the application form has been sent to the Court. There could be a number of Court hearings after the first hearing depending on the reasons that your ex partner is giving to the Court for not allowing your children to see you. It could be 4 to 6 months before you get to the stage where a Judge makes a final decision. Whilst the case is ongoing we will do our best to try to convince your ex partner to allow you to spend some time with your children, even if it is not as much time as you would have liked.
How do I work out child maintenance?
You and your ex-partner might decide on an amount that you feel is appropriate to your particular circumstances. Alternatively you could get an estimate of what your ex partner is liable to pay you by visiting the Child Maintenance Options website at www.cmoptions.org or you can telephone them on 0800 988 0988. If you can reach an agreement between yourselves you can download a family based arrangement form from the same website.
If you cannot reach an agreement then you will need to use the Child Maintenance Service (CMS). You must talk to Child Maintenance Options before you can use the CMS. Child Maintenance Options will give you the telephone number for your local branch of the CMS. There are fees payable for using the CMS.
The Child Maintenance Service calculates the amount of maintenance due by reference to the following formula:
- Calculate the gross yearly income of the paying parent (this does not include tax credits, student grants and loans). This CMS will obtain this information from HMRC.
- The CMS will check for things that could change the gross yearly income. For example, if the paying parent has another child living with them or they are paying into a pension then this could reduce their overall figure. The figure is then broken down into an average weekly amount.
- Depending on the gross weekly income of the paying parent, one of the following rates will apply:
Weekly Income: Applicable rate:
Less than £7.00 Nil rate
£7.00 to £100.00 or if the paying parent receives benefits Flat rate
£100.01 to £199.99 Reduced rate
£200.00 to £800.00 Basic rate
£800.01 to £3,000.00 Basic plus rate
The rates are as follows:
Nil rate
The paying parent pays no maintenance because they are either a student, a child aged 16 or under (or 18 or under and in full time education), they are a prisoner, they get an allowance for work based training, they live in a care home or independent hospital and get help with the fees of they are aged 16 or 17 and they or their partner gets certain benefits.
Flat rate
The flat rate is £5.00 per week no matter how many children the maintenance is payable for. This rate is often used for paying parents who are themselves in receipt of certain benefits or they live with a partner who is in receipt of certain benefits.
Reduced rate
This is £5.00 per week plus a percentage of the paying parent’s weekly income.
Basic rate
This is a percentage of the paying parent’s weekly income. The percentage depends on the number of children that child maintenance is payable for and the number of other children that the paying parent of their partner get child benefit for. The percentages are as follows:
- 1 child 12%
- 2 children 16%
- 3 or more children 19%
Basic plus rate
Here the basic percentage rates mentioned above are applied to the first £800.00 of the paying parent’s gross weekly income and further percentages are then applied to any additional income which is over £800.00 but up to a limit of £3,000.00:
- 1 child 9%
- 2 children 12%
- 3 or more children 15%
Can I take my child on holiday without the other parent’s consent?
Taking a child out of England and Wales without the consent of everyone who holds parental responsibility for that child can amount to an offence of child abduction. Whilst such prosecutions are relatively rare, you should always seek the consent of the other parent before going away on holiday abroad. If they agree to the holiday then you can ask a Solicitor to prepare a short form that can be signed to prove their consent. If they will not consent then that doesn’t necessarily mean that you will not be able to go on holiday but the process can be a little more complicated.
If there is a dispute then sometimes Mediation can help to resolve it without the need to go to Court. If Court is necessary then generally speaking, trips abroad for a holiday are thought to be in the best interests of a child a provided the proposal is reasonable and the welfare of the child concerned is going to be properly catered for then it is quite likely that the Court will allow the trip.
What is parental responsibility?
Parental Responsibility is the legal rights and responsibilities that you have as a parent for your child. These can include the following:
- The responsibility to provide your child with a home.
- The responsibility to protect and maintain your child.
- The right to name the child and consent to any change of name.
- The right/responsibility of disciplining your child.
- The right to consent to emergency medical treatment on the child’s behalf.
- The responsibility of choosing and providing for the child’s education.
- The right to look after the child’s property.
All mothers have parental responsibility for their children. A father will only have parental responsibility if one of the following applies:
- He was married to the mother at the time of the child’s birth.
- He was named on the birth certificate of the child and the birth was registered after 1 December 2003.
- The mother has signed a parental responsibility agreement granting the father parental responsibility.
- The Court has ordered that the father should have parental responsibility.
If you are a father who does not have parental responsibility but would like it you should talk to a Solicitor about sending a parental responsibility agreement to the mother or about making an application to Court for parental responsibility.
Will child maintenance payments stop if I remarry?
Child maintenance payments will not stop just because you remarry. The obligation to provide financial maintenance for a child is on the child’s parents, there is no obligation for your new husband and wife to maintain your children even though many do help with expenses on a voluntary basis.
We are not married and we live in my partner’s home. Am I entitled to anything?
If you live in your partner’s home but your name is not on the deeds to that property it does not necessarily mean that you are not entitled to anything. In the absence of any written document stating that you are entitled to a share of the property you have to prove that there was an intention that you would be entitled to some money from the property. It is quite difficult to prove intention but if for example, there were conversations between you and your partner along the lines of “what is mine is yours and that includes this house” then you might be entitled to claim something. You would need to show the Court that you acted to your detriment in the belief that you were entitled to something from the house. Your actions could include contributions towards the initial deposit, paying towards the mortgage or making substantial improvements to the property to increase its value.
If you have children and you can show that you have a specific need to remain in the property then it is possible to ask the Court for something known as a “Schedule 1 Children Act 1989 Order”. This could allow you to remain living in your partner’s house until such time as your youngest child has attained 18 or finished their full time education or until you marry someone else, die or cohabit with another person for a period or periods together exceeding 6 months. When the first of these events happens the house will revert back to the ownership of your ex-partner. An order under the Children Act does not mean that you are entitled to anything from the equity in the house but it can ensure that your children have somewhere to live until they have attained their majority.
If we have been living together, but haven’t married, does everything have to be split 50/50?
If you were not married to your ex partner then when it comes to dividing up your assets you will not be treated much differently to say, two friends or a brother and sister who were living together. There is no such thing as a “common law spouse” so whether you were living together for 2 years or 50 years the same rules apply. This basically means that you will retain everything in your name that you can prove you paid for and the same applies to your ex partner. If there is a particularly expensive item such as a car and when it was purchased you paid say 60% of the purchase price and your ex partner paid the remaining 40% then the second hand value of the car should be split in the same percentages. This means if you keep the car, you will need to pay your ex partner 40% of the value of it (unless you can prove that their contribution was a gift in which case you will own the car outright).
You will have no right to make a claim against your ex partner’s pension or other assets in the same way that married couples can and you will have no right to ask for financial provision for your own benefit (such as maintenance). You are still entitled to child maintenance which can be dealt with through the Child Maintenance Service if no agreement can be reached.
What happens to the children if we split up?
The arrangements for your children if you separate will be dealt with in a similar way whether you were married or not. Initially you should try to agree on who the children will be with and when. If an agreement cannot be reached then you might want your Solicitor to set out your proposals in a letter. If an agreement cannot be reached via Solicitor’s correspondence then your Solicitor will discuss with you the possibility of making a referral to Mediation. If Mediation is not suitable or you fail to reach an agreement with the assistance of a Mediator then you will have to consider making an application to Court to have the matter determined by a Judge. The Court will make its decision based upon what it feels to be in the best interests of your particular children. The Court determines this by reference to a welfare checklist which includes but is not limited to the following:
- The ascertainable wishes and feelings of the children concerned considered in the light of their ages and understanding;
- The children’s physical, emotional and educational needs;
- The likely effect on the children of any change in their circumstances as a result of the Court’s decision;
- The children’s ages, sexes, backgrounds and any other characteristics of the children which the Court considers relevant;
- Any harm that the children have suffered or may be at risk of suffering;
- The capabilities of the children’s parents and any other person in relation to whom the Court considers the question relevant in terms of their abilities to meet the children’s needs;
- The powers available to the Court.
Do I have to attend mediation?
Mediation is an entirely voluntary process and neither you nor your ex partner can be forced to attend. However, if you intend to make an application to the Court for a financial order or an order concerning children then the Court will expect you to have at least considered Mediation as a possibility. Therefore, in suitable cases, your Solicitor will make a referral to a Mediation service. The Mediator will contact your ex partner to see whether they would be willing to go to a free session which usually lasts about 30 minutes where they will learn about what Mediation can and cannot do. If your ex partner agrees to go to that session then you will be expected to go to a similar session to learn about Mediation. This is different to Mediation itself and at the end of the session either of you or both of you might decide that Mediation is not going to be suitable for your case. The Mediator will then provide you with a document to prove to the Court that you have considered Mediation as a possibility. Sometimes the Mediator will invite you both to the first session together and sometimes they will ask you to go to learn about Mediation first. Practice varies from service to service.
My spouse refuses to disclose the full extent of their financial assets? What can I do?
Clients who are a party to divorce proceedings will be advised by their Solicitor that they are going to have to give consideration to putting together full and frank disclosure of their financial positions. The documentation that will need to be produced can include but is not limited to bank statements, mortgage statements, pay slips and P60’s, property and pension valuations, business accounts, trust deeds and evidence of any debts. Whether financial matters are being dealt with by Solicitor led negotiations or as part of a Court timetabled matter, it is likely that both parties will need to complete a document known as a Financial Statement or Form E. This is a lengthy form and requires the person completing it to not only give details of assets that they currently have an interest in but also assets that they have had an interest in within the last 12 months. There is a stern warning on the first page of the document which reads as follows:
“You have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances. A failure to give full and accurate disclosure may result in any order the court makes being set aside. If you are found to have been deliberately untruthful, criminal proceedings may be brought against you for fraud under the Fraud Act 2006. The information given in this form must be confirmed by a statement of truth. Proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth.”
The two Financial Statements and the evidencing documentation are exchanged via Solicitors and each Solicitor will go through the paperwork with the assistance of their client checking for any unusual transactions or anything that might be missing. Sometimes failure to disclose an asset or another source of income can be a genuine oversight and questionnaires can be compiled asking for any missing information or documentation. Once those questionnaires have been answered one party might still feel that their ex-partner has failed to disclose something and the position can then become quite difficult as effective negotiations cannot take place where full and frank disclosure has not been provided by both parties.
Some clients ask whether they can undertake their own detective work and basically snoop around in their ex-partner’s paperwork or access their computer to try to find out more. The 2010 case of Imerman sets out important guidelines on what can be done and it also gives a warning that failure to abide by those guidelines can result in a person committing a criminal offence which can be punishable by a fine or a prison sentence. Any of the following could also be a criminal offence:
- Taking your ex-partner’s papers with the intention of permanently keeping them (this constitutes theft).
- Opening or intercepting another person’s mail.
- Using force to break into anything such as a locked briefcase, office or filing cabinet.
Even where a criminal offence is not committed, claims can be brought under the civil law for damages, compensation and costs if you do something such as take copies of someone else’s financial paperwork without their permission or you take something that is clearly private and has no relevance to the financial proceedings.
Because of the restrictions on clients being able to undertake their own self-help detective work, there is often a sense of frustration at not being able to prove that one party has been deceitful in terms of disclosing their financial position. Where there is good reason to believe that full disclosure has not been given by one party then the other party should really apply to Court (if they have not already done so) to have the financial case dealt with by a Judge. If the matter has not been resolved after the preliminary hearings the Judge can list the case for a full trial where all the evidence will be presented to the Court and the Judge will decide whether it has been proven that assets or income have been hidden or otherwise disposed of and if so, what effect that should have on the overall outcome of the case. Hiding assets can result in costs orders being made, financial orders being overturned or set aside and can result in a larger award being made to the party who has been open and honest with their disclosure.
If I leave the home, do I lose my rights to it?
Within divorce proceedings it is not the case that you keep the assets in your name free from any claim by your spouse. Therefore, if you leave the home then even if your name is not and never has been on the deeds that does not bring to an end your right to make a claim against the equity in that property. If your name is not on the deeds then whether or not you leave the property it is imperative that you speak to a Solicitor about registering a Notice of Home Rights. This notice is sent to the Land Registry and it means that if your spouse tries to sell, remortgage or otherwise dispose of the home, you will get notice of their intention to do that.
Sometimes Solicitors advise that you should stay in the home as long as you possibly can. There are a number of reasons for this which can include the following:
- If you re-house yourself elsewhere in satisfactory accommodation your spouse might say that you have less of a need for money to buy another property.
- If your spouse stays in the property and an order is made that it should be sold, they might try to frustrate a sale by making the house look undesirable for viewings or they might refuse to let potential buyers in to view the house.
- Remaining in the property can put pressure on your spouse to reach a financial settlement. If they are keen to get you out then they might offer you more than they otherwise would have done to conclude the case.
If your spouse is abusive towards you then it is possible to get something known as an occupation order which can exclude them from the home and allow you to live there, even if their name is on the deeds.
Can I change the locks to the property?
When a property is registered in the joint names of a husband and wife then both of them are entitled to enter and occupy the property. A Solicitor cannot therefore advise a client to change the locks to a jointly owned property although many people do change them anyway in an attempt to exclude the other person from the home. You should appreciate that if your husband or wife is named on the deeds then they can break into the house and they cannot be prosecuted for criminal damage to their own property. The correct way to exclude one person from the house if their name is on the deeds is to either apply for an occupation order if they are abusive or to reach an overall financial settlement as part of the divorce proceedings.
Should I make a Will if I’m getting divorced?
People who are going through a divorce should always be advised to either make a Will if they have not done so already or they should think about changing their existing Will. If a married person dies without having a Will in place then their husband or wife will automatically inherit any jointly owned property, their personal belongings and the next £250,000.00 of their estate (£450,000.00 if there are no children).
Any references to your husband or wife being entitled to anything under your existing Will remain valid until such time as your final divorce (known as the Decree Absolute) has been granted. It could take a number of months to reach the stage of the final divorce so it is always safest to ensure that your assets would be left to a person of your choice in the event of your death before that time.
Contact our Family Lawyers Birmingham
For legal advice on any of the above questions or for any family law queries, contact our family law team on 01212482850 or contact us by using our online enquiry form.