The range of questions divorce solicitors are asked quite mind-boggling – and they are not always related to the legal profession. However, there is a small band of them that come round time and time again. So I thought it might be useful to try and address some of the most common divorce and family law related questions in this blog.
A general piece of advice for clients though is to think about what you are going to ask your divorce solicitor before you go in to see them. This ensures you can make best use of the time. Make a quick list before getting in contact with us so that nothing is missed out and make sure that you have a pen and paper in case any other questions crop up.
One of the most common questions is “does it make a difference if we’re not married?” The short answer is yes, it does. The law for unmarried couples and married couples is very different. Firstly, and this may sound obvious, if you’re not married you don’t need to get divorced. That’s the good news. Not being married however also means that you have no automatic legal entitlement or responsibilities to each other over finances or possessions like you would if you had officially tied the knot.
If you intend to get divorced, another common query is “if my spouse objects to the divorce, then I can’t get divorced, can I?” It takes two to tango, but if one party wants to leave the marriage then the marriage will come to an end one way or another. The grounds for divorce include 5 years’ separation, in which case you don’t need the agreement of your husband or wife. At Woolley & Co, we try to make sure that your divorce will proceed as smoothly as possible so that your spouse doesn’t feel the need to object and you don’t find yourself in a contested divorce. {this blog was written before new No Fault Divorce laws came into effect in April 2022}
“My ex doesn’t have any claim over my assets after we divorce, does she?” A lot of people assume that once the decree absolute (the final document ending the marriage) has been granted, that concludes all financial claims. This is not the case, as some people discover to their peril. Even if you are divorced, unless you have an order setting out how your assets are divided, then you and your spouse could still make claims against each other in the future. So if you buy a new house with your new partner after your divorce, your ex-spouse could, if they have not remarried, ask for a share.
Recently a number of clients have asked “if we reach an agreement ourselves, do we still need an order?”. The answer is definitely yes. Although you will have avoided the costs of arguing the terms of the agreement, if there is not a written order then there is no agreement and there is still the risk you could come unstuck further down the line.
When it comes to children, there is still confusion around terminology and changes in the law. The Children Act 1989 did away with “access” and “custody” but these words are still most commonly used, despite being replaced with “contact” and “residence”. More recently, many unmarried fathers still assume that they have no rights in connection with their children. Up until December 2003, even if you were named on the birth certificate, you did not have parental responsibility for your child if you were an unmarried father. The Government changed this though so that unmarried fathers who were named on the birth certificate had parental responsibility for their children. This has led to some cases where a father may have parental responsibility for a younger child but not for an older child born before December 2003. Therefore it’s always worth checking what your position is.
So what are the most common questions I ask of clients? I often find myself asking – “Did you ever think that your spouse would tell you what you wanted to hear?” Very often clients will insist that their spouse is right, even when they have clearly been told the wrong thing. That’s part of the reason why you should always get some advice, so that you know where you stand.
Secondly, and perhaps a strange question: “Do you do your own dentistry?” I’m guessing the answer is no but very often people will want to “do their own divorce”. If they get it wrong, there could be serious problems. Most people go to their dentist every six months, but only get divorced once in a lifetime. The reason why people see a dentist is because they want their teeth looked after properly and that’s the reason why people should speak to a specialist family lawyer: to make sure that the job is done properly.
Ian Giddings
Divorce solicitor, Coventry
