10 Common Family Law Questions

The world of family law can be something of a mystery to the uninitiated, and everyone coming into contact with a family law issue has a question to ask. Here, we will endeavour to shed a little light upon the subject, by providing answers to ten of the most commonly asked questions.

1. How long does a divorce take?

Divorce can obviously be extremely stressful, so many people going through it will be anxious to know how long it will take.

Unfortunately, there is no fixed answer to how long a divorce will take, as it depends upon the circumstances.

And it is not just about the process of dissolving the marriage. There will often be other issues to deal with. In particular, it will usually be necessary to sort out arrangements regarding finances and property. Those arrangements will often take considerably longer than the divorce process.

As to the divorce process, this will take place in two stages: up to the conditional divorce order, and up to the final divorce order.

The process up to the conditional divorce order is begun by issuing the divorce application. After that, twenty weeks must elapse before the party or parties who issued the application can apply for the conditional order.

And then a further six weeks must elapse after the conditional order before an application can be made for the final order.

Accordingly, the divorce process will take at least twenty-six weeks, or six months, from start to finish.

But as we mentioned earlier, there may also be arrangements for finances and property to sort out, and it is usually advisable not to apply for the final divorce order until those arrangements have been dealt with, which could take several more months, or longer.

2. Can I defend the divorce?

For the vast majority of cases, the answer to this question is simple: it is not possible to defend a divorce under the current divorce law (it was possible under the old law, which was replaced in April 2022).

To give a little more detail, there is only one ground for divorce, and that is that the marriage has broken down irretrievably. The court will accept a statement from the party who applied for the divorce that the marriage has broken down irretrievably as proof of that fact. The other party therefore does not have the opportunity to argue that the marriage has not broken down.

There are however three situations where the other party can oppose the divorce, but they are very unusual: where they do not believe that the court has jurisdiction to deal with the divorce, if they can prove that the marriage was never valid, or if the marriage has already legally ended.

3. Can we apply for a divorce jointly?

Again, this question has a simple answer: yes, it is possible for both parties to the marriage to apply jointly for the divorce.

Such joint applications were first made possible by the introduction of the new law on divorce in April 2022.

Joint divorce applications proceed in a similar way to applications by one party, save for one point.

Where the conditional divorce order (see above) was made in favour of both parties, but the application for the final divorce order is to be made by one party only, that party must first give the other party 14 days’ notice of their intention to apply to the court for the conditional order to be made final.

4. Is everything divided equally on divorce?

The answer to this question is once again: it depends upon the circumstances.

The first thing to understand is that the assets that are divided between the parties on divorce are those assets that are considered to be ‘matrimonial’. Matrimonial assets are those assets that were acquired during the marriage, through the joint efforts of both parties to the marriage. Accordingly, assets acquired before the marriage, after the parties separated, or by way of gifts or inheritances acquired by one party, are not ‘matrimonial’. Non-matrimonial assets will only be awarded to the party who did not acquire them if they are required to meet that party’s needs (more of which in a moment).

The next thing to understand is that there is a general principle that the courts use when deciding upon the division of the matrimonial assets. It is known as the ‘sharing principle’. The sharing principle states that an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is a good reason for doing so.

The sharing principle means that in many cases the assets will indeed be divided equally on divorce.

However, in many other cases there is a good reason to depart from equal division. The most common such reason is the financial needs of the parties, in particular in relation to their housing and income. Those needs may well mean that one party should receive more of the assets than the other party.

5. Am I entitled to a share of my spouse’s pension?

You may well be entitled to a share of your spouse’s pension on divorce, particularly if the pension was accrued during the course of the marriage, and your spouse has greater pension provision than you.

Pensions are often one of the most valuable assets on divorce, and it is therefore essential that they are taken into account in the divorce settlement.

Exactly how the pensions are taken into account will depend upon the circumstances, but the ‘sharing principle’ mentioned above still applies. This means that it is not uncommon for pensions to be ‘equalised’ between the parties, so that each party is left with the same pension provision.

Pensions can be dealt with in there ways: by a pension sharing order, which transfers all or part of one party’s pension into a pension belonging to the other party; by a pension attachment order, which states that one party will receive part of the other party’s pension, when the other party receives it; or by an offsetting arrangement, whereby the pension owning party keeps the pension, and the other party receives more of the other assets, in compensation.

6. Do we still need a court order if finances are agreed?

It is certainly advisable that an order be obtained, to ensure that the agreement is both final and enforceable.

Such an order is usually referred to as a ‘consent order’. Consent orders are technical legal documents, which should be prepared by a specialist family lawyer.

Consent orders can normally be obtained without the necessity of attending court, but the court will require details of each party’s means, so that it can be sure that the order is broadly reasonable. In rare cases the court might refuse to make the order, so it is best for both parties to seek legal advice before applying for the order, to ensure that the terms of the agreement are reasonable.

7. What is parental responsibility?

Parental responsibility is defined by the law as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

There is no definitive list of parental responsibilities, but they include such things as the duty to maintain the child, the duty to educate the child, the decision to have medical treatment administered to the child, and the right to choose the child’s name.

Where the parents are married, both automatically acquire parental responsibility. Where they are not married, only the mother automatically acquires it – the father can acquire it by being registered as the father on the child’s birth certificate, with the mother’s agreement, or by obtaining a parental responsibility order from the court.

8. What kind of children orders can the court make?

There are essentially three types of orders that the court can make in private law children cases (i.e. cases not involving social services):

• A child arrangements order, regulating arrangements relating to with whom the child is to live, spend time or otherwise have contact, and when the child is to live, spend time or otherwise have contact with any person. A child arrangements order may therefore for example state that the child is to live with one parent, and have contact with the other parent.
• A prohibited steps order, stating that no step which could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. Such orders may be used, for example, to prevent a parent from removing the child from the country.
• A specific issue order. Specific issue orders give directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child, where the parents cannot agree upon that issue. An example of such an issue is which school the child should attend.

9. What is a common law marriage?

The answer to this is simple: there is no such thing as a common law marriage. An unmarried couple will never acquire the status of marriage simply by living together, no matter how long they do so.

Importantly, this means that anyone who lives together without getting married will not acquire the rights of a married person to make financial claims against the other party, in the event that the relationship breaks down.

10. What is domestic abuse?

Everyone will understand that domestic abuse includes violence by one party against the other, but it also includes much more.

Domestic abuse consists of any of the following:

• Physical or sexual abuse;
• Violent or threatening behaviour;
• Controlling or coercive behaviour, such as preventing the victim from seeing family or friends;
• Economic abuse, affecting the victim’s ability to acquire, use or maintain money or other property, or to obtain goods or services; or
• Psychological, emotional or other abuse.

Needless to say, if you have been the victim of any type of domestic abuse then you should seek urgent advice upon how you can obtain the protection of the law.

How we can help

It is hoped that the above was useful, but obviously there is no substitute for detailed advice, tailored to your particular issue. We can provide you with that advice. To speak to one of our specialist family lawyers, complete the form on this page.