Frequently Asked Questions
Can I get divorced in the first year, If not what are the alternatives?
No, you cannot petition for divorce in the first year, however you can still use the reasons which made you want to divorce as evidence after the first year. Alternatively you could petition for Judicial Separation, this does not dissolve your marriage; however it signifies that both parties are separated. Further still there is no one year bar.
What if I did not get married in England?
The English courts have the power to hear certain divorce cases, but only if they fall under at least one for the following:
- Both parties habitually resident in England and Wales
- Both were habitually resident and 1 still resides in England and Wales
- Respondent habitually resident in England and Wales
- Petitioner habitually resident in England and Wales and lived there at least 1 year immediately before petition
- Petitioner domiciled and has been residing in England and Wales for at least 6 months before the petition
- Both parties domiciled in England and Wales.
- If the above do not apply and no other court has jurisdiction either parties are domiciled in England and Wales when proceedings begun.
Habitual – Person lives in the country voluntarily with the intention to settle.
Petitioner – The spouse initiating the divorce and filing the petition.
Respondent – The other spouse.
What is the ground for divorce?
The marriage must have irretrievably broken down.
What facts must be established to satisfy the ground for divorce?
To establish the ground for divorce the Petitioner must be able to prove it through one of the following 5 facts:
The Respondent has committed adultery and the Petitioner finds it intolerable to live with
The Respondent behaved in such a way that the Petitioner cannot reasonably be expected to live with
The Respondent deserted the Petitioner for a continuous period of 2 years immediately before the petition
The parties lived apart for a continuous period of at least 2 years before the petition and the Respondent consents to the petition
Parties have lived apart continuously for 5 years immediately before the petition.
What is the difference between a Decree Nisi and Decree Absolute?
Once you have obtained the Decree Nisi the Court is satisfied that you have established the ground for divorce. The Decree Nisi will be read out in open Court, however, unless you have any objections neither party need attend.
The Decree Absolute is the final stage in the divorce proceedings in which the marriage will be dissolved, the Petitioner can apply for this 6 weeks after the Decree Nisi was granted.
How will I afford the repayments on the mortgage by myself?
On the breakdown of the marriage the Courts have a wide range of powers and orders that they can make in regards to the parties finances. As a result they will make orders to ensure that each party has enough finance to pay for such payments and outgoings. On the other hand the Court may order a Clean Break where it is evident that both parties can support themselves.
Clean Break – It is evident to the Court that the Parties can support themselves financially, consequently the parties end their financial interdependence.
I’ve been at home looking after the kids, no job, no savings, no pension, am I entitled to anything from my partner?
The Court has a duty to follow certain criteria when establishing how to distribute assets. They will take in to consideration issues such as the age of the parties, the length of the marriage and the role of the parties in the marriage. Hence depending on the outcome, the Court also has the power to split pensions so that both are entitled to a share.
How is he/she going to contribute towards the children?
Parents can come to arrangements themselves without involving authorities, however if the marriage did not end amicably then it may be easier to involve the Child Maintenance and Enforcement Commission (C-MEC). If the child is unmarried and under 16 or under 19 and still in full-time education the Parent applying can step aside and let C-MEC organise payments from the non-resident parent without any acrimony.
If the child is disabled or none of the parties are resident in the United Kingdom, contribution for the child would be a matter from the Courts to decide.
Child Maintenance and Enforcement Commission – Previously called Child Support Agency
Should I amend my Will now that I have received my Decree Absolute?
Yes, once you have your Decree Absolute your marriage is dissolved and your status as husband and wife changes. Thus all provisions relating to the other Spouse will need to be amended so that your Will is updated.
Introduction
Our service only relates to divorces that take place in the courts of England and Wales which, for simplicity, we shall refer to as The English Courts’. Therefore, before ordering our service, you will have to check that the English Courts have jurisdiction to deal with your petition. If you are still unable to decide whether or not you are entitled to a divorce in the English Courts after reading this section, we would be happy to advise you further via Josiah-lake Gardiner LLP.
Undisputed jurisdiction
You should make sure your spouse agrees that the divorce can take place in the English Courts. If your spouse disputes jurisdiction when your petition is served, we will not be able to continue with your case. If your spouse does not dispute jurisdiction, then the court is unlikely to raise any difficulty itself, unless there is an obvious problem with your petition.
Living in the UK
In a typical case (for instance, where both parties live in England and Wales and are UK nationals) there should be no problem with jurisdiction, and the English courts will definitely be able to process the divorce.
Living Abroad
However, even if you and/or your spouse presently live abroad, you may still be able to issue a divorce petition in the English Courts. It is not even necessary for you and/or your spouse to be physically present in England or Wales during the proceedings. In fact, it would not be necessary for either party to attend any court hearing, assuming there are no unusual complications. Therefore our service will be particularly useful for ex-pats, who may find it difficult and expensive to see and English solicitor the traditional way, but who still need expert guidance throughout the divorce process whilst living in a foreign country.
Married Abroad
Perhaps surprisingly, it does not even matter if you were married abroad. To get divorced through English Courts it is not legally necessary for your marriage to have taken place in England or Wales. Essentially, the only requirement is that your marriage was valid under the laws of the country in which it took place.
Non-UK Nationals
It does not even matter if you and/or your spouse are not UK nationals. You can still get divorced in England and Wales if you satisfy one of the jurisdiction tests, although those tests may be affected by the question of whether or not you are an EU national.
Overseas Divorce Petition
Please note that we are not able to assist if a divorce petition has already been issued in another country, as this would create a jurisdiction dispute in this instance, please contact Josiah-lake Gardiner LLP for advice on how to proceed.
Habitual Residence and Domicile
In more complicated situations, you may need to prove habitual residence or domicile in England or Wales on the part of you and/or your spouse. Therefore, you need to understand the definitions of habitual residence and domicile. It is usually preferable to rely upon habitual residential rather than e domicile, if this is possible in the circumstanced of your case. We explain the two definitions in more details below.
Brussels ll Revised
The issue of jurisdiction is governed by an EU Regulation, usually referred to as Brussels ll revised. This regulation applies to all EU states except Denmark. The effect of the regulation is that the English Courts will only have jurisdiction to deal with your petition in certain specific circumstances. If the facts of your case do not fit into one of these categories, you will not be able to issue a divorce petition through the English Courts. Some of the clauses may seem inflexible or odd but, basically, most of them relate to habitual resident for specific periods of time. The Petitioner is the person who actually starts the divorce proceedings by issuing a petition (i.e. you). The Respondent is the person who replies to the petition (i.e. your spouse).
The EU Regulation states that the English Court will only be able to deal with your petition if, and only if, one of the following descriptions applies to your circumstances.
1. Both the Petitioner and the Respondent are habitually resident in England or Wales
2. The Respondent is habitually resident in England or Wales.
3. The Petitioner and the Respondent were last habitually resident in England or Wales and one of them continues to reside there.
4. The Petitioner is habitually resident in England or Wales and has been so residing for at least one year immediately before the petition is issued.
5. The Petitioner is domiciled in England or Wales and has been residing there for at least six months immediately before the petition is issued.
6. The Petitioner and the Respondent are both domiciled in England or Wales.
Or if (but only if) no court of an EU contracting state has jurisdiction under Brussels ll revised.
7. The Petitioner or the Respondent is domiciled in England or Wales on the date when the petition is issued.
The member states of the EU which are presently bound by the regulation are Austria, Belgium,
Cyprus, Czech Republic, Germany, Greece, Estonia, Finland, France, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Slovakia, Spain, Sweden and the UK
‘What is ‘Habitual Residence’?
Habitual residence means that you live somewhere regularly. To establish habitual residence, case law shows that someone must be physically present in that country on a voluntary basis, for a settled purpose, and with a settled intention to remain there for a significant period of time. EU law on this point shows that one must focus on a person’s centre of interest. For the purposes of Brussels ll revised a person can only have one habitual residence. Please find a few examples below.
Habitual Residence – Example 1
If you have lived in England all your life, or for some years, then clearly you are habitually resident in this Country. If you visited another country for a holiday, you would not become habitually resident in that Country, even if the holiday lasted for several months – you would remain habitually resident in England.
Habitual Residence – Example 2
If a family moves abroad in connection with a family member’s temporary employment, then this should be enough to establish habitual residence in that other country, even if it is only for a period of a few months.
Habitual Residence – Example 3
A person can cease to be habitually resident in Country A in a single day if he/she leaves with a settled intention not to return and to take up long term residence in country B. However, that person would not become habitually resident in country B the same day. He/she would need to stay in country B for an appreciable period of time, with a settled intention to remain there, before becoming habitually resident.
Habitual Residence – Example 4
Habitual residence is not lost by temporary absences in a different country, provided that those absences are not inconsistent with habitual resident in England.
Habitual Residence – Example 5
A person’s presence in England or Wales need not be lawful under immigration laws to establish habitual residence here. However, if a person’s presence in the UK is unlawful, then this might be relevant to the factual question of whether or not habitual residence has actually been established.
Establishment of Habitual Residence
Establishment of habitual residence for general purposes does not in itself depend upon a specific period of time but instead upon how firm it is. However, the EU Regulation does require habitual residence of specific periods of time in some circumstances to give the r jurisdiction to deal with a divorce petition.
Determining Habitual Residence
Important factors that are often taken into consideration in deciding whether habitual residence has been established include the following.
1. Where does a party usually/always live, work study and/or enjoy leisure time?
2 If a part moves out of England or Wales, is this move only temporary?
3. Does a party intend to move his/her centre of affairs to another country?
4. Where has a party retained his/her properties and furniture, even if rented out?
5. Where is a party’s car registered?
6. Where is a party’s mailing address?
7. Where is a part registered with doctors etc?
8. Does a party have English or foreign mobile phones?
9. Where is the centre for financial arrangements – such as bank accounts, financial advice, tax status, NI contribution etc?
10. What is a party’s nationality?
For more information or free legal advice telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk or fill out our contact form.
