Southampton: 02380 713 060
Alresford: 01962 670 510

Email: enquiries@sousalaw.co.uk

FAQ

Divorce/Separation

How do I get divorced?

By filing a divorce petition at your local Court and setting out why you want a divorce.
There is only one ground for a divorce, being that the marriage has broken down irretrievably. This must be supported by one of five facts:

  • Your spouse has committed adultery
  • Your spouse has behaved in such a way that you are no longer expected to live together
  • You and your spouse have lived apart for two years and your spouse consents to the divorce
  • You and your spouse have lived apart for more than five years
  • Your spouse has deserted you

 

How much will it cost?

We offer competitive fixed fees for uncontested divorce and other areas of family work where all issues have been agreed.

Where our hourly rates apply we offer payment schemes by monthly standing order, allowing you to spread your legal costs.
In certain circumstances we may agree for our fees to be paid upon settlement of the case. This is considered on a case by case basis and will depend upon the assets and timescales involved.

It is of great importance to us that our clients are able to manage their legal costs in the best way possible for them. It is for this reason that we are very clear about the likely costs, and we discuss with the client the best way for them to make payment towards their costs from the outset.

How long will it take to get a divorce?

The divorce alone, normally takes between 5 and 6 months. In most cases, the divorce and financial settlement should be concluded within approximately 12 months but it can take longer. Sometimes it is best to finalise financial arrangements first before concluding the divorce by way of Decree Absolute.

Is there such a thing as a “quickie divorce”?

You quite often hear the phrase a “quickie divorce”. However, the legal procedure cannot be shortened. The procedure provides for certain timescales which cause the process to routinely take approximately 5 months at best. Much depends on the speed with which documentation is completed by the parties and how quickly the paperwork is handled by the Court. There is a minimum period of 6 weeks between Decree Nisi being granted and being able to file an application for Decree Absolute.

I have left and my ex-spouse has told me I have no rights – is this correct?

This is not correct. Whether it was your decision to end the relationship or not, or indeed your decision to leave the former matrimonial home or not, this does not mean that you have no rights. It would be sensible for you to seek legal advice to discuss your options, particularly if you require financial assistance from your spouse following separation.

Children

What does “Custody”, and “Access”, “Residence” and “Contact” mean?

The Child Arrangements Programme was issued in April 2014. Applications for “residence” or “Contact” (or “custody” and “access”) are now applications for a Child Arrangements Order. These applications typically deal with who the child(ren) should live with and how much time the child(ren) should spend with the other parent.  Essentially, it is the terminology that has changed.

What happens if there is a dispute over who the child(ren) should live with?

There is no presumption that the children shall live with one parent over the other. The focus will be what is in the best interests for the child(ren). If you cannot agree the Court can be involved and decide. This is the last resort. The Court will encourage you to try and resolve issues in mediation. If where the child(ren) currently resides is placing him/her in immediate danger, then emergency applications can be made to the Court.

What is Parental Responsibility?

Parental Responsibility provides a parent with the right/responsibility to make welfare decisions for a child in relation to their education, health, religion and where a child lives. However this is not an extensive list.

What is MIAM?

A MIAM is a mediation information and assessment meeting which is a prerequisite meeting you must attend (unless you satisfy a relevant exception) prior to initiating a Child Arrangements Order application or a financial remedy application.

What is Parental Responsibility?

Parental Responsibility provides a parent with the rights and responsibilities to be involved, consulted and make welfare decisions for a child in relation to, for example, their education, health, religion and where a child should live.

How do I get Parental Responsibility?

A Mother obtains it by giving birth. A father, however, has this responsibility only if he is married to the mother when the child is born or has acquired parental responsibility for his child through one of these three routes:

  • By jointly registering the birth of the child with the mother (for births since 1st December 2003)
  • By a parental responsibility agreement with the mother
  • By a parental responsibility order made by a Court

How do we work out the child maintenance?

It is usually best to try and agree a figure. The Child Maintenance Service (formerly the Child Support Agency) provides an online calculator for working out the amount that should be paid based on how many children there are, the payer’s income and how often the children stay with the payer during a calendar year.

Unmarried couples/Living together

Common Law Marriages

It is a common belief that if you live with someone for a specific length of time, you become a ‘common law spouse’ and therefore have certain financial rights should you separate. However, this is not the case.

Couples who previously lived together have no right of financial support from each other. If a financial adjustment is sought then unmarried couples will face a complex mixture of procedures and law, rather than the relatively more straightforward procedures and principles applied to married couples.

What if my partner leaves but stops paying the bills?

This depends on whether the bills are in joint names, your sole name or your ex partner’s sole name. If the bills are in joint names you are both liable for meeting those payments and/or outstanding debts. Any bills/debts in your sole name, you are responsible for and vice versa.

If you are unmarried with children, your ex-partner is not liable to pay maintenance to you. However, they are liable to pay child maintenance in accordance with the statutory formula that is currently governed by the Child Maintenance Service.

Married couples can apply to the Court, if necessary, to seek a Court Order compelling their spouse to pay maintenance to help cover necessary and reasonable outgoings until such time as the financial settlement for the permanent division of the financial resources has been made.

We are not married and we live in my partner’s home. Am I entitled to anything?

There is no simple answer to this. The law gives no automatic rights to a partner in these circumstances, but, for example, if you have contributed towards the deposit on a purchase, or provided money for significant improvement to the house, you may have a claim. It is worth getting legal advice and having an agreement drawn up to reflect property ownership, contributions and your intentions.

If we have been living together, but haven’t married, does everything have to be split 50/50?

Not necessarily. If you have reached an agreement (particularly if it is documented) about the property ownership, your contributions and your intentions about the way it is held and what will happen to it in the future, then that can be very useful and persuasive evidence.

If a financial adjustment is sought then unmarried couples will face a complex mixture of laws, rather than the rules and principles applied to married couples.

What happens to the children if we split up and we’re not married?

Whether you are married or not, this does not make a difference. The most important thing is to try and resolve matters in the best interests of the children with as little disruption to them as possible. If you are not married it is important to ensure the issue of Parental Responsibility is resolved and in all cases to consider the children’s welfare needs.

What if my partner won’t leave our shared property?

This will usually depend on how the property is owned or rented. If the property is in joint names then it may be hard in the short term to force somebody to leave the property. You may need legal advice to discuss your best options.

What are Pre-Nuptial and Post-Nuptial Agreements?

A Pre-Nuptial Agreement is a document in which a couple intending to marry sets out how they want any property, debts, income and other assets purchased together or acquired individually or acquired during the relationship to be divided if the relationship ends. These agreements are voluntarily entered into and require very clear guidance in relation to their terms. It is very important to take legal advice in relation to the preparation and negotiations involved in the preparation of such a document.

A Post-Nuptial Agreement is the same as a Pre-Nuptial Agreement save for the fact that it is executed after the parties’ marriage.

Will a Pre-Nuptial Agreement stand up in Court?

At the moment a Pre-Nuptial Agreement is not legally binding in as much as a Divorce Court in England and Wales can undo any agreement reached in a Pre-Nuptial Agreement and impose its decision if it feels there needs to be a different outcome. This depends on the individual circumstances at the time of a divorce or separation.

However, these agreements are persuasive and if carefully thought out can be a useful tool in proving how the parties originally wanted assets, income, debts and so on to be divided.

Do I need a Pre-Nuptial Agreement?

If you are contemplating marriage and have substantial wealth or inherited or pre-relationship-acquired assets then you should consider taking further advice. In any case, understanding prior to marriage what may happen to your financial resources in the event of the marriage later breaking down may be useful in determining whether a Pre-Nuptial Agreement should be sought.

Civil Partnerships

Can I get divorced?

Yes. Civil Partnerships can be dissolved as long as you have been registered in a Civil Partnership for more than a year. A change in the law in 2004 provides separating Civil Partners almost the same procedure as married couples. The main difference is that a Civil Partnership cannot be dissolved on the basis of adultery.