Divorce & Separation

Divorce & Separation frequently asked questions

• How long will it take to get a divorce?
• I am leaving my spouse for a new partner, how likely is it that they will become involved in the divorce proceedings?
• If I move out of the family home, will this affect my rights?
• Does the admission of adultery affect the ultimate financial settlement in a divorce?
• Will my ex-partner get half of my pension if we divorce?
• Do I need to make a Will when I divorce?

How long will it take to get a divorce?

The length of a divorce can vary and depends on how co-operative your spouse is in the divorce proceedings. If they return the necessary court forms without delay then the whole process of the divorce should take between four and six months. If they do not co-operate then it may be necessary to have your spouse personally served with the divorce papers by a court bailiff or by an enquiry agent and the case could be delayed whilst that occurs.

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I am leaving my spouse for a new partner, how likely is it that they will become involved in the divorce proceedings?

Your spouse may name your new partner in the divorce proceedings. In general this is no cause for concern. Your new partner may be worried about being named, but it is highly unlikely that this will have any legal or practical implications for him or her. Your new partner is likely to receive copies of the divorce papers and will need to sign a reply form saying whether he/she objects to the divorce. However, once that has been done it would normally be the end of the matter so far as your new partner is concerned.

Your spouse will not be able to bring a claim directly against the income or assets of your new partner. However, it is possible that your new partner’s financial situation might be taken into account when sorting out your financial settlement. Any assets or income of your new partner might affect your entitlement to your share of the matrimonial ‘pot’ or your liability for maintenance for your spouse or for the children.

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If I move out of the family home, will this affect my rights?

In general a spouse will not be penalised for moving out of the family home. In the vast majority of cases the ultimate financial settlement is not affected and you would not lose any rights to a share of the house or any other capital. Although your rights are not affected by moving out, you will lose some control over certain matters, such as contact with any children or access to personal possessions. If the house is to be sold at a later stage, you may lose control over how it is marketed to prospective purchasers. It would therefore be sensible to obtain some initial advice before you actually move out.

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Does the admission of adultery affect the ultimate financial settlement in a divorce?

When looking at a financial settlement, the court does not attempt to apportion blame for the breakdown of the marriage. Only in extreme cases will the court consider bad behaviour or conduct. Far more important are the respective financial needs of both parties (and of any dependent children) and the capital resources which are available to meet those financial needs.

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Will my ex-partner get half of my pension if we divorce?

Whenever a financial settlement is being worked out all assets held by both partners must be brought into account. It is always considered better that arrangements should be made for a settlement which prevents either partner having claims against the other in the future. If there are other substantial assets then it is possible to give your partner a larger share of those assets to compensate for loss of pension.

There have been moves recently towards an equal division of the capital, including the value of pensions which have been built up by either partner, especially during a long term marriage. However, that does not necessarily mean to say that your spouse will get half of your pensions when you retire. In a simple case one spouse may receive more than half of the house, but in return will have no claim over the other spouse’s pension. In that way the assets are still divided equally, the value of the pension is taken into account but the pension itself remains unaffected. It is fair to say, however, that there might be cases where the other assets are not of sufficient value to offset the value of the pension entirely. In such cases there will most likely be some claim over the pension.

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Do I need to make a Will when I divorce?

Almost certainly, yes. There are various reasons for this. It is likely that your house will be in joint names. Without a Will, if you should die, then the house will automatically pass to your spouse as the sole surviving joint owner. This can be prevented by severing the joint tenancy and making a Will leaving your half of the house to your intended beneficiary.

Similarly, until your divorce goes through then your spouse remains your next of kin. If you should die without making a Will, your spouse will be entitled to all or part of your estate. If that is not what you would want to happen, then you need to make a Will leaving your share of the assets elsewhere.  If you have an existing Will you may wish to remove your spouse as beneficiary and possibly add others. You might also want your Will to include provisions for guardians for the children and to say what you would wish to happen with the children if they should still be minors at the time of your death.

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Read a magazine article about Matrimonial Solicitor Sandra Russell