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Ten commonly asked questions about divorce

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Walker Family Law
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Ten commonly asked questions about divorce

Anyone contemplating divorce will inevitably have a lot of questions to ask. As any experienced family lawyer will confirm, many of those questions crop up over and over again. This post is intended to provide quick answers to some of the most commonly asked questions.


1. What are the grounds for divorce? couple discussing divorce

There is only one ground for divorce, and that is that the marriage has broken down irretrievably. However, under the current law it is necessary to prove irretrievable breakdown by proving one of five things: that the other party has committed adultery; that the other party has behaved unreasonably; that the other party has deserted you for a continuous period of two years or more; that you have been separated for a continuous period of at least two years and the other party consents to the divorce; or that you and the other party have lived apart for a continuous period of at least five years. Note that new divorce laws are due to come in late next year, under which it will no longer be necessary to prove that the marriage has irretrievably broken down.


2. Can I get divorced if I don’t know where my spouse is?

Normally a divorce can only go ahead after the other party has been notified. However, if you don’t know your spouse’s whereabouts it is possible to ask the court to proceed without them being notified. The court will, however, need to be satisfied that all reasonable efforts have been made to locate your spouse.


3. Do I have to be separated to get divorced?

If the divorce is on the basis of adultery or unreasonable behaviour (see question 1 above) then you don’t need to be living separately in order to get divorced. However, if you live together for six months after finding out about the other party’s adultery then you will not be able to rely on that adultery to get divorced, and if you live together for six months after the last incident of unreasonable behaviour then the court might find that the marriage has not irretrievably broken down. Obviously, these two rules will not apply when the divorce law changes.


4. Do I need a lawyer to get divorced?

No, but we would obviously recommend that you do consult a lawyer! A divorce can throw up complex issues, especially regarding financial arrangements, and to go ahead without proper legal advice, even when the divorce seems straightforward, can be risky. For more information about why you should consult a lawyer, see this post.


5. Who will the children live with if I divorce?divorce, two people gap between

The children can live with either parent, or share their time between the parents. There are no hard and fast rules as to where they should live. Normally, arrangements for children will be agreed by the parents. If they cannot agree, then the court can decide what arrangements are in the best interests of the children.


6. Who gets the house on divorce?

The answer to this depends upon many factors, such as who most needs the house, for example because the children live with them, whether the house should be sold, and whether the parties can afford to keep the house. For further information, see this post.


7. Can I claim against my spouse’s pension?

Yes you can. You can ask the court to make a ‘pension sharing order’, transferring all or part of your spouse’s pension to a pension in your name. In many cases the court will consider it appropriate to ‘equalise’ pensions between the parties, so that each party is left with similar pension provision. For more details about pensions and divorce, see this post.


8. How long does a divorce take?

Once again, the best answer is: ‘it depends’. It depends upon a number of factors, such as how busy the divorce centre dealing with the divorce is, how quickly the other party responds to receiving the divorce papers, and whether other matters need to be sorted out before the divorce can be finalised (it is usually recommended that the divorce is not finalised until financial matters have been resolved). Under the present system it is possible that the divorce could take as little as three months (six months under the new system due to come in next year), but usually it takes considerably longer than that.


9. Do I need to go to court to get divorced?court room

If the divorce is undefended then it should not be necessary to go to court. However, if there are finances or arrangements for children that cannot be sorted out by agreement, then you may have to go to court when they are dealt with. For more on this subject, see this post.


10. Can I revert to my maiden name after I divorce?

Yes. Your name is simply whatever you ask people to call you, and there is therefore nothing to stop you from reverting to your maiden name. However, you may need a written change of name deed as evidence of the change. Note that you cannot change your children’s names without the other parent’s agreement, or a court order.

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As stated, these are just intended to be quick answers to these questions. For more detailed answers you should consult a specialist family lawyer.