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Divorce - What does this actually mean?

 

It is very painful when a marriage break up occurs, and your first thoughts are not often about whether you need to obtain legal advice, so why might legal advice be required?  There are still many misconceptions about divorce, the process and when there should be a financial settlement.

There is only one ground for a divorce which is the irretrievable breakdown of a marriage.

To prove the irretrievable breakdown of a marriage, divorce must be based on one of the following five facts:

  • Adultery
  • Unreasonable behaviour
  • Separation of 2 years, which both parties consent to
  • Separation of 5 years
  • Desertion

You cannot simply say that you have grown apart, or no longer love each other.

You must have been married more than one year to even commence divorce proceedings.  If you have not been married for over a year, you might need to consider alternatives such as judicial separation or a separation agreement?

The divorce process is fairly straight forward, and usually takes about 6 months or so.  Neither party needs to attend the court, as is it a paper based process.

A divorce only dissolves the marriage; it does not end the financial claims that have arisen as a result of the marriage.  These need to be separately dismissed by the court.  If they are not, and perhaps a few  weeks after your Decree Absolute is granted you win the lottery, your former spouse could come and make a claim against you.

This is a common mistake, particularly with DIY divorces.  Even if you have no assets now, you may do in the future, and you therefore need to enter into financial agreement resolving the issues now so that no claim can be made against you in the future! 

It is particularly important if you do have assets that a financial agreement is entered into at the time of the divorce.  It can be difficult many years later to say exactly which assets were from the marriage and which have been accrued post divorce.

Some couples simply separate and assume they are “legally separated”, and do not divorce or sort out anything out for years.  Even if you informally separate and do not enter into any formal agreement, then you are both still married, just living apart.  Not only are you still married, but you still need to resolve the financial claims which have arisen as a result of the marriage.

Disclaimer: This article is not intended to constitute legal advice.  For legal advice in connection with the above, please contact us directly.

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