Divorce: Common Questions Answered

When a marriage or civil partnership breaks down, knowing what to do can be difficult. Ryan Elliott, Associate in our Family & Matrimonial team, answers some commonly asked questions for couples going through separation and divorce.

My marriage/civil partnership is over.  Do I need a Solicitor?

Securing confidential legal advice is always sensible. Despite having good intentions, family and friends can often give the wrong advice, due to being influenced by their own beliefs, what they have heard, or simply in wishing to be supportive.  Even if you are considering some form of family mediation with your spouse/civil partner, engaging a Solicitor at the earliest opportunity is always the best course of action.

What are the grounds for Divorce?

Any divorce must be grounded on the irretrievable breakdown of the marriage or civil partnership as you are asking for the marriage/civil partnership to be dissolved.

The five grounds for divorce are:

1. Adultery
2. Unreasonable Behaviour
3. Desertion
4. Living apart for two years (and you both consent)
5. Living apart for five years.

We can advise on which grounds are available and appropriate in your particular circumstances.

I wish to avoid going to Court – is this possible?

At Cleaver Fulton Rankin, we are alive to the need to resolve personal matters without recourse to Court.

If you are able to reach an agreement with your spouse/civil partner as to what will happen to the matrimonial assets, then going to Court to separately deal with those matters can be avoided.

In Northern Ireland, it is still necessary for one spouse/civil partner to lodge the divorce papers with the court office, and ultimately to attend Court for a short hearing (now conducted via webcam).

If the divorce is grounded on a fault-basis (adultery, unreasonable behaviour, desertion) and the allegations are being refuted by the other spouse/civil partner, then both spouses/civil partners would be required to attend Court for a hearing.

I am opposed to divorce on religious/moral grounds, is there an alternative to divorce?

Yes, anyone who is married can apply for a judicial separation which is similar in some respects to divorce but is a separate mechanism.  In judicial separation, the person applying to the Court does not need to satisfy the Court that the marriage has broken down irretrievably.  Upon the granting of a judicial separation, the obligation for the parties to live together as a married couple is brought to an end.

My spouse/civil partner and I actually still live together in our home, does one of us need to move out in order to start getting divorced?

There are many reasons why a couple might continue to live in the same house after the breakdown of their relationship, in some cases, for years.  Economic realities such as tight household budgets, high rents, high mortgage repayments, and consideration for the children of the family are all common reasons.  The law takes these realities into account so that a couple can still get divorced on the grounds that they have been living apart for two years, despite continuing to live in the same property.  The couple must have been living ‘separate lives under the one roof’ for the clock to start ticking.  We can advise of the particular factual circumstances that apply.

My spouse/civil partner has since left Northern Ireland.  Can I still get divorced here?

Ordinarily, jurisdiction is not problematic.

To get divorced in Northern Ireland, you must satisfy the Court that Northern Ireland is the correct country to be dealing with the divorce.  There is a lot of legislation on this point.  Generally speaking, the person asking the Court for a Divorce must satisfy one of the following grounds:

• Both spouses/civil partners are habitually resident in Northern Ireland.
• Both spouses/civil partners were formerly both habitually resident in Northern Ireland and one of the parties still lives in Northern Ireland.
• The person receiving the Divorce papers is habitually resident in Northern Ireland.
• The person taking the Divorce is habitually resident in Northern Ireland and has lived in Northern Ireland for at least one year immediately prior to the presentation of the Divorce papers. (If this ground is applicable, it is necessary to provide addresses of where the Petitioner has resided, along with the length of time at each address.
• The person taking the Divorce is domiciled and habitually resident in Northern Ireland and has lived in Northern Ireland for at least six months prior to the presentation of the Divorce papers

The legal implications of Brexit have added a layer of complication for couples who regularly work abroad or are based in many countries throughout the year.

There may be tactical reasons for starting a divorce in another country, particularly if there are significant assets owned outside of Northern Ireland.

Everything is owned by my spouse/civil partner, do I have any entitlement?

In short, yes.

A spouse/civil partner will have an interest in any asset that is deemed matrimonial in nature, even if that asset is held in the sole name of your spouse or jointly with someone else.

The same principle applies for unmarried couples.

In certain circumstances, a spouse/civil partner will have an interest and a claim against an asset that has been put into the name of another person such as a relative, friend, or business partner.

I have primary care of the children, can this be taken into account?

Yes, safeguarding the welfare of any minor children of the family, and ensuring that their needs are being met and will be met in the future, is always the key consideration.

I have a pension from my job, will my spouse/civil partner be able to claim my pension?

In short, yes.

We can advise you on what entitlement a spouse/civil partner may have in your pension, and vice versa, and how to protect your pension from any such claim.

I think my spouse/civil partner is taking steps to put our assets and money out of my reach, what can I do?

A spouse/civil partner who has good reason for believing that their spouse/civil partner is deliberately putting  property, assets, or money out of reach, can apply for a Court Order freezing all such assets and bank accounts.  The same applies if a spouse/partner is mortgaging a property without your consent.

My ex-partner and I never got married, but we did live together for many years, what happens there?

Although matrimonial law will not apply in cases where couples have not married, the law does afford protections to unmarried couples who separate, particularly where they have both contributed towards the purchase, upkeep, maintenance, and/or ownership of property during the relationship.

How much will a divorce cost?

There is no such thing as a ‘quickie divorce’, and beware any legal professional that promises otherwise.  Even straightforward divorces can feel long and arduous due to the emotional strain involved in confronting such deeply personal matters.

The costs of divorce will depend on how much time is required to be spent by the Solicitor in achieving a satisfactory resolution of the case.

Court proceedings and complexity of the issues can also cause legal costs to increase.

The instruction of outside experts, such as accountants or estate agents, is often necessary and those outlays will be payable in addition to legal professional fees.

At Cleaver Fulton Rankin, we aim to resolve personal matters efficiently and we strive to minimise our clients’ legal costs at all times.

For further information on our Family & Matrimonial services, visit our webpage.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.