Local legal experts discuss frequently asked questions from separating parties

Local legal experts discuss frequently asked questions from separating parties

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Who can start divorce/dissolution proceedings?Anyone who has been married or in a civil partnership for over a year who has been resident in England or Wales for the preceding twelve months or is domiciled in England and Wales.

I married abroad therefore do I have to issue divorce proceedings abroad?No although it will be necessary to obtain a translation of the marriage certificate if this is not in English.

Can I divorce my spouse/civil partner on the basis of ‘irreconcilable differences’?No, there is only one ground for divorce in this country which is that the marriage has irretrievably broken down however this statement in itself is not sufficient to issue proceedings and must be proven by relying upon one of five facts (four facts for irretrievable breakdown of a civil partnership). Three of these facts are based on periods of separation of at least two years and the other two facts are adultery or unreasonable behaviour (only unreasonable behaviour applies in the case of dissolution of civil partnership).

Do I need my spouse/civil partner’s agreement to issue proceedings?Not unless you are issuing an application for divorce or dissolution on the basis that you have been separated for a period of two years. If you are relying on this fact then the consent of both parties will be required. If you are applying for a divorce on the basis that your spouse has committed adultery it will be necessary for your spouse to admit to the adultery within the proceedings and therefore it is better for the parties to have reached an agreement that the proceedings will be based on this fact before the application is made.

I am convinced my spouse has committed adultery but they are refusing to admit it. Can I still rely on this fact to show that the marriage has irretrievably broken down?If your spouse is refusing to admit that they have committed adultery then it will be more difficult for the proceedings to progress if the application is made on this fact. It would be better to issue on the basis of unreasonable behaviour and rely on a relationship with a third party as an example of your spouse’s unreasonable behaviour.

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How do I make the application for a divorce or dissolution?The application is made in the same format whether you are applying for a divorce, dissolution or judicial separation and irrespective of which fact you are relying to make the application.

The application form is broken down into sections or ‘Parts’ and contains basic information including the names and addresses of both parties, details of any children and a statement that the marriage has irretrievably broken down and confirmation of which fact the party is relying on to evidence the breakdown of the marriage. The application form concludes with the ‘prayer’ which includes a request for the divorce/dissolution to be granted together with a claim regarding the costs of the divorce and an order for financial provision for both the applicant and any children.

Are the proceedings public?Divorce proceedings are usually private however in some cases they can be made public such as the McCartney divorce so if there is a risk that there is likely to be public interest in the matter then it may be appropriate to consider an alternative process such as mediation or collaborative law.

Jane DevineSolicitor and PartnerStorrar Cowdry SolicitorsIndia House, 21 Castle StreetChester, CH1 2DSTel: 01244 400 567Email: jane.devine@storrarcowdry.co.uk

Solicitors’ comments...

Making the decision to separate and issue divorce proceedings is never easy. There are always many questions that need answering; some can be answered by friends and family. However you will also have questions about your legal position and rights.For this you should always seek legal advice from a family law solicitor to ensure you know where you stand. Pragmatic legal advice from your solicitor, and emotional support from your friends and family, will help you to plan your next steps.

Janet Baines, Specialist in Family & Divorce and PartnerFamily and Divorce DepartmentWalker Smith Way solicitorsjbaines@walkersmithway.com0844 346 3147www.walkersmithway.com

If you are going through a divorce or relationship breakdown Russell Jones & Walker offer a free initial consultation. We also offer evening and weekend appointments.It is important that you obtain as much information as possible from your first meeting with a solicitor. Effective communication is key.At the initial consultation it is important you are clear as to what is going to happen and understand the cost implications of any instructions you give your solicitor. We can offer fixed fee arrangements (like many other firms) which clients often prefer.

For specialist legal advice contact Lorraine Harvey, Family Law Partner at Russell Jones & Walker on 0161 383 3650 or l.harvey@rjw.co.uk.Russell Jones & Walker,1st Floor, St James’ House, 7 Charlotte Street, Manchester M1 4DZ www.rjw.co.uk/familyMost divorces are started by the wife on the basis of unreasonable behaviour. However, there is no such thing as the guilty or innocent person and it does not matter whether you are the Petitioner or Respondent in the divorce proceedings in relation to care of the children and finances.

Diana Williams, PartnerCollaborative Lawyer and Family MediatorCullimore Dutton, 20 White FriarsChester CH1 1XS. Tel: 01244 356789diana.williams@cullimoredutton.co.ukwww.collabfamilylawcheshire.org.uk

The key issue which separating married couples need to understand is that Decree Absolute only concludes the marriage, not the financial claims of the parties. This can only be done with a specific order of the Court, with a Judge exercising their discretion either on the presentation of an order agreed by the parties or at the end of a final hearing. If you do not have an order dealing with your financial claims, the claims remain live for each party until they remarry and to try to deal with such claims after the lapse of several years is a difficult and often expensive process. Our advice is always to finalise your financial remedy claims at the same time as your divorce.

Christine BarkerManaging Partner / Head of Family DepartmentLaytons, 22 St John Street, Manchester M3 4EBTel: +44(0)161 214 1600, Fax: +44(0)161 214 1661Email: christine.barker@laytons.comVisit our website at www.laytons.com

Another frequently asked question: I am separating from my spouse: what should I do?

1. Make sure you look after yourself; get support from family/friends, a counsellor, and consult your GP if you feel depressed. This is very normal.

2. Seek (free) information about what to do next and how to help your children if you have any. The free Divorce UK app (one of the Sunday Times top 500 apps worldwide) has useful information about mediation, collaborative law and the legal process. See also www.resolution.org.uk and www.divorce.co.uk.

3. Consult a specialist collaborative lawyer or family mediator to talk you through the options, next steps and suggest other agencies who may be able to assist. Try www.chambersandpartners.com and www.familymediationhelpline.co.uk/find-service.php or Mills & Reeve

Alison Bull, Team Leader Associate, family lawyer, collaborative lawyer and mediatorfor Mills & Reeve LLP, Tel: +(44)(0)161 235 5424, Mobile: 07918 942 652 alison.bull@mills-reeve.com9th Floor, 1 New York Street M1 4HD DX 14409 Manchester2 http://www.mills-reeve.com/familylaw

There are many questions and misunderstandings surrounding relationship breakdowns such as the myth of ‘common law marriage’ which was in fact abolished in England and Wales in 1753.A specialist family lawyer will be able at the outset to answer all your questions on the procedures and practicalities to resolve issues arising from your relationship breakdown, whether relating to your children, former spouse/partner, or finances. They will be able to advise you on the best options for you and your particular circumstances and guide you through what would otherwise be a very daunting and distressing time.

Beverley DarwentFamily Law PartnerPannone LLP, 123 DeansgateManchester, M3 2BUTel: 0161 909 1579Email: beverley.darwent@pannone.co.uk