15 commonly asked questions about Divorce. Please contact us on 01634 299210 if you have a specific inquiry.

1. Do I need legal representation?

There is no requirement for a party to a divorce or dissolution to have legal representation.  Although Divorce documentation attempts to be user friendly it can still be a bewildering process especially if your spouse has legal representation and you do not as their solicitors will not advise you on the content of the documentation sent to you. All too often the party without legal advice does not do enough to protect their rights, does not pursue their fair entitlement or agrees to an ongoing obligation that they may not have had to had they received proper advice. This can have far reaching consequences and result in increased legal fees when finally resolving the issues in the future.  It should be remembered that this area of law is complicated and much relies on what the Court would deem reasonable on a case by case basis. No two divorces are the same and only experienced professionals, such as those at Martin Tolhurst Solicitors can give advice to best protect your position. Details of our fees will be supplied at the outset.

2. What is the Process?

You will need to discuss with your chosen Solicitor whether you wish to proceed to divorce or dissolution quickly or whether you and your partner can agree to wait for a while. The only ground for divorcing under English Law is that the marriage or civil partnership has irretrievably broken down and this is demonstrated by one of five facts. Your Solicitor can advise you of the details of each of these and how they may apply to your individual circumstances. The process, from start to finish, can take as little time at 5 months if everything is agreed at the outset and few problems occur during the matter.  If the circumstabces are complicated and the parties are not in agreement, the process can take years to conclude.  Your Solicitor at Martin Tolhurst will be able to advise and support you during every step.

3. What about the jointly owned Property?

In the majority of divorce or dissolution suits, the joint property is the major asset of the marriage, into which most of the parties' capital has been ploughed. If the property is held jointly, other than by order of the Court, no single owner can force the other owner out of the property or change the locks. If this occurs you should speak to one of our Solicitors immediately. More usually, within the breakdown of a marriage or civil partnership, it often becomes intolerable for two parties to live together any longer, therefore, immediate thought needs to be given as to who will remain in the property and then as to whether the property has to be sold. This decision will rest upon numerous factors such as payment of the mortgage and any other bills. More in depth advice on this point can be  discussed with us and we can advise you according to your individual circumstances.

4. But my name is not on the deeds – do I have a right to stay?

Where a married person or party to a civil partnership moves into their spouse’s solely owned home, by virtue of the marriage they have a right to occupy the property by virtue of the marriage/civil partnership. If this is denied upon breakdown of the relationship we can apply on your behalf to the Land Registry to protect those rights of occupation until you are formally divorced or the civil partnership is formally dissolved. You should speak to one of our solicitors immediatly if your rights of occupation are at risk.

5. What about any Joint Savings?

If you have a joint bank account, you must start to consider how to split any credit balance that there may be in the account and potentially closuing of the account. Consideration should also be given to sole accounts being opened with income being paid into the sole account and enough monies being paid into the joint account to service the outgoings.  If there is an overdraft on the joint account, both parties will be jointly and severally liable for the outstanding balance.  This will need to be considered when negotiating a final settlement.

6. What can I do to assist?

The process can be a time consuming, costly and stressful affair, so if a divorce or dissolution is imminent, organisation of your financial affairs is key to saving time and legal costs, enabling your solicitor at Martin Tolhurst to concentrate on other issues of concern. Consideration should be given to creating a file to include a valuation of the jointly owned property, an an up to date redemption figure for any mortgages secured on the property, your last 12 months’ bank, building society and investment statements, up to date values of any endowment policies, an up to date loan statement and your last three statements for any credit cards you may hold. This will give you a clearer picture of your financial position and assist in the negotiation of the asset disftribution required. Usually, the most difficult document to obtain is the Cash Equivalent Transfer Value of your pension, if any, which can take up to three months to be produced therefore this figure should be applied for from the pension provider as soon as possible. 

This list of considerations is not exhaustive but will provide you with a useful guide to enable you to be better prepared when instructing one of our solicitors who will require all of the above information and more. This will also hopefuly help to streamline the process to reach an acceptable and amicable conclusion.

 7. Should I discuss the matter with my spouse?

The answer to this question really depends upon the  relationship you have maintained with your spouse following the breakdown.  Attempting to discuss contentious financial matters may lead to a further ill feeling and prejudice the possibility of negotiating a settlement without the need for the Court's intervention.  However, if you feel that you are able to discuss financial matters and narrow the issues, or reach an agreement, this should be attempted as this will utimlately save time and legal costs for you both.

8. I have been offerred the chance of mediation, what should I do?

The decisions is utimately yours.  Mediation can be cost effective, less formal and can promote a better relationship between the two of you, which is especially important where there are children involved.  Mediation should only be considered with a qualified mediator and where both parties are willing to be open and honest about their wishes and feelings.  Mediation can be attempted before seeking legal advice or in addition to doing so.  There are many mediation services available throughout Kent.

9. I do not want to disclose my assets, what can I do?

No legal professional should ever advise you not to fully and frankly disclose all of your assets.  If the Courts find that you have wilfully neglected to disclose an asset you were aware of both during and after Divorce Proceedings, you are guilty of the offence of Contempt of Court and could be liable to a fine or even imprisonment.  If the issue of disclosure arises after an order has been made by the Court finalising financial matters it may well mean that the settlement achieved could be overturned and the process entered into again with the value of the undisclosed asset taken into account.

10. What about inherited proprerty and assets?

This is very often an area of contention for divorcing spouses.  Much depends on the level of the inheritance and whether both parties' needs can be met from the other assets.  Inheritances are an issue upon which specialist advice is necessary right at the outset.

11. I have a new partner, does that matter?

This all depends on how serious your relationship is.  If the relationship is in its infancy, neither of you live together and have no plans at this stage to live together in the future, your new partner's financial position should not be an issue.  If however, the relationship becomes more serious, the Courts may alos wish to consider your partner's financial position because there is an argument they would be able to assist you with your future housing needs and costs.  Financial disclosure by your new partner may be requested and ultimately can be ordered by the Courts.

 12. My spouse has said they want some of my pension, is that possible?

Within divorce, the Court has the power to deal with pensions in a number of ways.  The first is ofsetting where the notional value of the Pension is offset against other assets such as equity in the property or savings.  The second is Pension Sharing where a defined percentage of the overall fund is held in the Pension fund for the benefit of the non-pension fund member or transferred out into their own pension fund so that they can have the benefit of their own fund at retirement.  Finally, Pension Attachment where a specific portion of the pension is ordered to be paid to the non-pension fund member as if it were being paid to the pension fund member, usually at the time of the pension fund member's retirement.  Pensions are a difficult and ever changing area of the law but your Solicitor at Martin Tolhurst will be able to guide you through this based on the current available information.

13. I have my decree absolute, but my spouse is now claiming money from me.  Isn't it all finished?

This is a common misconception.  In most cases, the Decree Absolute simply confirms that you are no longer married.  The financial claims that arose by virtue of your marriage still need to be dealt with usually by way of an Order of the Court, a Consent Order or by the Court dismissing those claims.

14. What about the children?

If you have dependent children, agreeing who will be the primary carer and have residence of the children following the breakdown is often the most difficult and immediate decision to be made.

The courts consider that the children's needs are paramount.  If agreement cannot be reached regarding residence and contact issues (formally known as access and custody), the Courts will only make an Order where they believe an Order is necessary and in the best interests of the children.  Matters regarding the children are completely separate issues to the financial matters facing you following the breakdown of your marriage/civil partnership and should not be negotiated together.  If your solicitor observes the Family Law Protocol, issues regarding contact and residence with the children and issues regarding financial matters will be dealt with in seperate correspondence.

15. How is child maintenance calcualted?

The Child Support Agency (soon to be renamed the Child Maintenance Enforcement Commission) deals with assessment and, where necessary, collection of child maintenance which is a payment made to the parent with residence, for the benefit of the children of the family.  Your solicitor at Martin Tolhrust will be able to advise you on the basic principles applied by the Agency in assessing and calculating the amount of child maintenance due.  Since the introduction of the Child Support Agency, the Courts no longer have the jurisdiction to deal with child maintenance issues, except in very limited circumstances.