Family Law FAQ
Frequently Asked Questions
Q. Does it matter who divorces who?
In the vast majority of cases, nothing will turn financially on who is the Petitioner in the proceedings and who is the Respondent. The advantage of being the Petitioning party is that you have the opportunity to control the timetable of the proceedings. A disadvantage is that you may ultimately have to underwrite all the costs of the divorce proceedings although in some cases it is possible to obtain a Costs Order against the Respondent in the proceedings.
Q. How long does a divorce take
An undefended divorce will normally take between four and six months to conclude. To a large degree, timescales will depend on how long the Court takes to deal with each of the procedural stages. The timeline of a divorce may be considerably extended if there is an argument about the financial aspects of the case.
Q. How much will my divorce cost
We provide clients with detailed cost estimates at the outset of a matter and also refer you to the link to our fixed fee product which is suitable in some cases.
Q. Which County Court does the divorce have to take place in?
The issuing of divorce proceedings has now been centralised.
Q. Can I take my children abroad for a holiday without the other parent’s consent?
No, you cannot. If the other parent does not provide consent, you will need to make an application to the Court for permission to remove the child from the jurisdiction for the purposes of a holiday.
Q. Can I move abroad with my children?
You cannot move children out of the country without the other parent’s consent. The first step is therefore to try and obtain the other parent’s acquiescence to the move. If consent cannot be obtained voluntarily, an application has to be made for “leave to remove from the jurisdiction”.
Q. Are Pre-Nuptial Agreements legally binding?
Recent case law is such that the likelihood is that properly drafted agreements entered into in appropriate circumstances WILL be upheld on a future divorce. Tailored advice is imperative on this subject in order to obtain the most effective result.
Q. Will I be able to keep on divorce any inheritance I receive?
Broadly speaking, the Family Courts categorise assets into:
- matrimonial assets – those that have been built up during the marriage (e.g. the matrimonial home); and
- Non-matrimonial assets – assets brought into the marriage when it began or assets inherited from one or the other’s family i.e. not through the joint efforts of the parties.
The distinction between types of assets can be important in endeavouring to persuade a Court that the assets should not be divided strictly equally. It is however important to point out that this distinction is far more likely to be relevant in cases involving larger sums of money. In cases where the parties’ needs in terms of re-housing cannot or can just be met from the available capital, it is unlikely that a Judge is going to be persuaded by contribution or inheritance arguments.
Q. Is it always a 50/50 division of capital
The starting point is usually 50/50 but the Court has a check list of factors to consider whether equality would be a fair outcome. If there are minor children of the family, housing them will be the most influential factor.
Q. Child maintenance – how much should I pay
This area is governed by Statute and the easiest way to find out how much you are liable to pay is via the website: https://www.gov.uk/calculate-your-child-maintenance
Q. Spousal maintenance – how much will I have to pay?
There is no set formula for calculating spousal maintenance. There are a number of factors which will contribute towards the calculation of spousal maintenance including needs and affordability.
Maintenance can always be varied upwards or downwards if circumstances change so for instance, if the paying party is made redundant.
Maintenance comes to an end automatically if the person receiving it remarries. It does not come to an end automatically if the person receiving maintenance starts to cohabit unless the final order in the financial proceedings provides for that eventuality.
Q. How long will I have to pay maintenance for?
In relation to child maintenance, an absent parent should broadly regard themselves as being liable to pay maintenance until the child has concluded full time education. Spousal maintenance duration will depend upon the length of the marriage and whether or not there are dependent children for instance, if the marriage is short and there are no children the likelihood is that no maintenance will be payable or only payable for a short time.
The Court has a statutory duty to consider whether a clean break is appropriate and if so, when this can be achieved without undue financial hardship.
Q. What are the options with pensions?
Over the past 20 years, pensions are becoming an increasingly important part of financial settlement. Both statute and case law have developed substantially since the late 1980’s.
Pensions are likely to be a significant issue if the marriage is long and/if there are children of the relationship. Pensions will be less important if the marriage is short, there are no children and / or the parties are relatively young.