One of the most common phrases that Family lawyers hear is that of common law husband or wife, suggesting that people believe that they are entitled to a share of another person’s assets even if they are not married because they have lived...
Once a party has made the difficult decision to end their marriage it is important to ensure matters are dealt with properly. A Divorce or Dissolution can only be started after you have been married or in a civil partnership for 12 months, this is known as the One Year Rule. Most divorces follow a four-stage process: -
The only ground in this country for obtaining a divorce is the irretrievable breakdown of the marriage. To prove this, you must claim one of the following facts in your Divorce Petition; Adultery (not applicable to Civil Partnership or Same Sex Marriage Dissolutions), Unreasonable Behaviour, Two Years Separation and Consent, Desertion or Five Years Separation. Whichever ground you cite the timescales and process is the same:
- Divorce Petition
- Decree Nisi
- Decree Absolute
The person who starts the divorce is called the Applicant/Petitioner and the other is called the Respondent. The Court fee for starting the divorce is £550. Persons on a low income can apply to have the Court fee reduced or exempted by making an Application for a Fees Exemption. The Applicant/Petitioner can ask the Court to order that the Respondent pays their costs associated with the divorce, known as a Claim for Costs.
Once the Divorce Petition is sent to the Court the Respondent has 14 days to file an Acknowledgement of Service. If they do not, in most circumstances they can be personally served and the divorce can continue without their involvement, but this will place them at higher risk of a Costs Order being made against them.
Once the Respondent has returned the Acknowledgement of Service (or has been personally served if they are failing to engage) the Petitioner can apply for the Decree Nisi. This is where a Judge will approve the divorce in principle and make any Costs Orders it fees necessary.
Six weeks and one day after the Decree Nisi, the Applicant/Petitioner can apply for the Decree Absolute which ends their marriage. If they do not do so, the Respondent can apply three months after the date on which the Applicant/Petitioner could have applied. Once the Decree Absolute is pronounced either party is free to remarry, however just because the marriage has been legally ended this does not mean that the parties have lost their legal financial claims against their former spouse as a result of their marriage.
Financial Matters on Divorce – A Warning
For the remainder of their lives, either party may bring financial claims against the other as a result of their marriage after Decree Absolute and so it is important to address finances as part of the divorce process to eliminate this risk.
Some rights to claim are lost if a party remarries before making their financial claim, but not all. This is known as the Remarriage Trap or the Elephant Trap. Further, some pension rights can be lost on Decree Absolute and so sometimes, delaying the Decree Absolute or pushing for it as soon as possible may be in a person’s interests. This is why it is important to instruct an expert.
In most cases, provided the process is properly followed and documents drafted correctly, there will never be a need to attend Court and matters will be dealt with by post.
Financial security is often top of the list for many of our clients once they have separated. However, every couple’s finances are very different, and it is therefore important to take tailored advice as to the likely financial outcome of your separation.
We aim to work with our clients and their spouse to try and reach an amicable agreement at all times.
If you would like to discuss this further please do not hesitate to speak to one of our friendly team members on 01785 252377 for Stafford appointments or on 01782 813315 for Stoke-on-Trent or Alsager appointments.