When a marriage has irretrievably broken down, a divorce will legally bring the marriage to an end. To be eligible for divorce or to end a civil partnership, you need to have been married or in the civil partnership for twelve months or more. If this is not the case, you can apply for a judicial separation.
It is important to understand that the divorce does not end the financial obligations that arise within a marriage. To separate your finances, you must reach a financial settlement to decide how the assets of the marriage are to be split. The Family and Matrimonial team at MKB Law will ensure that you are informed on all decisions that must be taken.
What are the grounds for divorce?
The ground for divorce in Northern Ireland is the “irretrievable breakdown of the marriage.” You must satisfy the Court that the marriage has broken down due to at least 1 of 5 facts. The facts can be split between fault-based facts and non-fault-based facts.
- Adultery
- Unreasonable Behaviour
- Desertion
- 2 years separation with consent
- 5 years separation
The process of ending a civil partnership is the same, the only difference is that you cannot rely on the ground of adultery.
What is a Decree Nisi and Decree Absolute?
The Decree Nisi is the first part of the divorce. However, it is important to note that the Decree Nisi does not bring the marriage to an end.
Once you are granted a Decree Nisi, you may apply for your Decree Absolute after waiting a period of 6 weeks and 1 day. The Decree Absolute legally ends the marriage. In some cases, there may be financial matters outstanding that means applying for the Decree Absolute will be delayed.
How long does a divorce take and what is the cost?
It is extremely difficult to provide a timeline for divorce. Several factors can impact on the length of the divorce including the co-operation and engagement of the other party, financial matters and child contact arrangements. However, your solicitor will keep you fully updated at each stage of the process.
We aim to be as transparent as possible with our fees and have a set fee for divorce proceedings as follows:
What if my spouse fails to cooperate?
Depending on the fact relied upon in the divorce petition, you may be able to proceed with the divorce. For example, if you have used the grounds of unreasonable behaviour or 5 years separation you can make a separate application to the Court to prove your spouse has been served with the divorce papers.
However, if your divorce petition is based on the fact of 2 years separation with consent, you will require your spouse’s consent and the return of the Acknowledgement of Service Form. If this is not achievable, you can amend your divorce petition and rely on a fact that does not require your spouse’s consent.
Can I proceed if I don’t know where my spouse is living?
It is extremely important that you take all necessary and appropriate steps to ascertain the whereabouts of your spouse. The Court will want evidence that all steps have been taken and all sufficient enquiries have been made to locate the spouse. This may include advertisements in local papers, contacting the Police, contacting family members and friends. If the Court is satisfied that all steps have been taken, then the Court will dispense of Service.
How do I dissolve my civil partnership and what are my rights?
A Civil Partnership is dissolved in the same way a marriage is dissolved. This is by way of a Petition to the Court on the grounds that the civil partnership has broken down irretrievably. You must satisfy the Court that the Civil Partnership has irretrievably broken down by relying on one of the following facts;
- Unreasonable behaviour
- Desertion
- 2 years separation with consent
- 5 years separation
Please note adultery is not a fact that is available for the dissolution of a Civil Partnership.
Abuse in the relationship - how do I protect myself?
Anyone can become a victim of domestic violence or abuse regardless of age, gender, sexual orientation or ethnicity. If you have been the victim of physical or psychological abuse, MKB Law can help you obtain protective remedies through the Court.
A Non-Molestation Order can prevent your partner from harassing or molesting you in any way, either directly or indirectly. The harassment does not have to be physical and can be mental or emotional abuse. An Occupation order is an order that will remove your partner from your shared home to allow you peaceful occupation of the property.
A divorce does not end the financial relationship between parties. In order to separate your finances, you must reach a financial settlement often known as a Matrimonial Agreement. The Agreement decides how assets of the marriage should be split.
If an amicable agreement cannot be reached, then the Court will have the final decision on how the assets are split. A range of factors are usually considered including the length of the marriage and contributions made by each of the spouses. The Court proceedings are known as Ancillary Relief and can be issued by either party to the divorce.
What happens to the family home in divorce?
The family home is often referred to as the former matrimonial home (FMH) and is usually the biggest asset to divide in a divorce. The starting point is always a 50/50 split of the equity. However there a number of factors the Court will take into consideration when looking at the division of the FMH and the main factor for consideration is which parent has care of the minor children of the family. There are many ways that a Matrimonial Agreement can be reached concerning the FMH. It is important to speak to your solicitor to get independent legal advice.
How do I agree a settlement with my spouse without going to Court?
A settlement in respect of the matrimonial finances can be agreed between the parties without Court intervention. This process involves exchanging financial discovery, negotiating the division of assets, and drafting the terms into a Matrimonial Agreement.
What is Collaborative Law?
Collaborative Law involves the process of negotiation, timetabling and settlement of the financial disputes without Court Proceedings. The aim is to reduce acrimony and allow the parties to be in control of the progress.
If matters cannot be resolved through the collaborative process, the parties do still have the right to issue Court Proceedings. However, it is important to note that any Court proceedings must be issued through an alternative solicitor.
Anne Marie Kelly, Family Director, is a qualified collaborative solicitor.
Can I stay in the matrimonial home if I can’t pay the mortgage?
This will depend on several factors, namely the financial contributions from the other spouse. If your spouse is not contributing sufficiently then an application may be made to the Court for spousal maintenance.
The Courts are reluctant to Order a sale of a property when there are minor children residing in the property.
When to apply for an injunction?
A Mareva Injunction is a court order which has the effect of freezing assets. This prevents a party from disposing of assets. You must issue Divorce Proceedings to enable you to apply for an injunction.
What happens to my pension when the marriage breaks down?
Your Pension will be considered as part of the matrimonial assets. If there is a disparity in the pensions, this can be met either through a Pension Sharing Order or by off-setting.
A Pension Sharing Order is where a percentage of the fund is separated out and administered either by the Trustees of that fund internally or an external transfer to a fund. The spouse can benefit from this on retirement.
Off-setting is whereby one spouse wishes to buy out the other spouse’s interest by offsetting against the existing assets.
How do I qualify for spousal maintenance?
Spousal maintenance is available in cases where there is a significant disparity between the parties income.
A Court application can be made on behalf of the spouse entitled to spousal maintenance in the event the other party does not provide sufficient or appropriate maintenance payments post separation.
What are the cost of proceedings?
| Service | Fee |
| Professional Fee | Hourly rate |
| Court Fee – Summons & Affidavit | £392 |
| Swearing Fee | £5 – 10 approx |
Should I get a pre-nuptial agreement?
A pre-nuptial agreement is a formal written agreement between two partners prior to their marriage. The agreement sets out the ownership of all assets and explains how they should be divided in the event of the marriage breakdown.
It is important to note that pre-nuptial agreements are not legally enforceable in Northern Ireland, but can be persuasive.
I own my own family business, can my spouse claim against it?
If one spouse owns a business, or has a significant shareholding in a business, then the starting point is to have the business valued. We will also look at whether the spouse received a salary from the business and is making a direct contribution. The value of the business will be treated as part of the matrimonial assets. You can find out more here.
How do I raise money to pay the value of my shareholding?
In order to raise money, it is important to make financial service enquiries. Funds can be raised by a bank loan or by compensating the other spouse with a lump sum payment from other matrimonial assets.
How is the business valued?
The Court’s encourage a single joint expert to be instructed to mitigate against extensive costs. This is usually carried out by an independent forensic accountant. If the business owns property, that property will also be valued separately. The starting point to value a business, is to obtain full and frank discovery to enable the expert to carry out their valuation. The discovery, which will include accounts and tax returns, must be exchanged to inform the expert.
Whether you are facing legal proceedings involving your children or need legal advice when dealing with social services, MKB Law’s Family Law team can help you. In cases involving children, Court proceedings should be the last resort and the welfare of the child should always remain the primary consideration. Should Court proceedings be necessary, our solicitors can assist you to apply to the Court for orders such as Residence Order, Contact Order, Specific Issues Order, Prohibited Steps Order and Parental Responsibility Order.
Anne Marie Kelly and Áine Toner are members of the specialist Children Order Panel accredited by the Law Society of Northern Ireland.
Residence/Contact (Private)
What is a residence order?
A Residence Order is an Order settling the arrangements as to whom the child lives with. This should be obtained in the instance where one parent resides in a different jurisdiction and can be shown to authorities should the other parent refuse to return the child.
Where a child resides equally between households, a Joint Residence Order can be sought.
A Residence Order should also be obtained if the other parent is refusing to return the child for significant periods of time. The Court however will not make an Order in respect of a child if they do not consider it to be of any benefit to the child. This is known as the ‘No Order’ principle.
Furthermore, a Residence Order held by the other parent will not affect your parental rights. The Residence Order simply decides where and with whom the child should live. The Court can also decide how much contact you can have with your child in the form of a Contact Order.
Can I be consulted if I am not living with my child?
Yes – parents share Parental Responsibility. Both parents should remain informed in relation to the child’s welfare, education etc, even if the parents no longer reside together. Parental Responsibility will enable you to obtain important information from relevant public services such as the child’s school and GP.
The other parent has stopped contact, what can I do?
If a parent is unreasonably withholding contact, you should seek advice in respect of negotiating a formal contact arrangement.
If the other parent refuses to engage with such negotiations, you can apply to the Court for a Contact Order.
A Contact Order is an Order which required the person with whom the child resides, to allow the child to visit or stay with the person named in the Order.
If contact cannot be agreed between the parties, a Grandparent may seek permission from the Court to bring an application for a Contact Order.
How long do Court proceedings take and what is the cost?
It is practically impossible to provide timescales in respect of Court proceedings as each case will vary. It is therefore essential to seek expert legal advice sooner rather than later.
We will keep you fully updated in relation to the progress of your case and any likely factors which may cause delay.
We aim to be as transparent as possible in respect of the fees throughout your case. There will be both professional fees and outlays which will need to be paid, however we will update you in advance of same.
Do I need a court order to relocate with my child?
If you intend to relocate with your child, you will require the permission of anyone who shares Parental Responsibility for that child. This is usually the other parent.
If the other parent does not consent to the relocation, you will be required to make an application to Court for permission to relocate with your child. These are known as ‘relocation proceedings’.
The Court will consider various factors throughout the course of these proceedings, but the welfare of the child will always remain its paramount consideration.
If you are considering moving abroad with your child, you should seek expert legal advice.
What can I do if my child is brought up in a different faith to me?
If your child is brought up in a different faith to you and you do not believe that this is in the child’s best interest, a Specific Issue Order application can be made to the Court.
My child has been removed from the jurisdiction, what can I do?
If a child is removed from the jurisdiction for a period longer than 30 days without your consent, this is treated as child abduction. Urgent proceedings will be required in order to ensure the return of the child to Northern Ireland immediately. You should contact us urgently for legal advice in relation to this.
Public Law
What can I do if my child has been taken into care?
If your child is taken into care, the Trust will bring proceedings before the Court. Please see the threshold for when the Trust will intervene in family life detailed in the question below.
You should contact our family department as soon as possible in order to obtain expert legal advice.
What are supervision orders and care orders?
The Trust may make an application to the Court for either a Supervision or a Care Order in respect of a child where they believe the child is at risk or is suffering significant harm.
A Supervision Order gives the local authority the legal power to monitor the child’s needs and progress.
A Care Order allows the Trust to share parental responsibility in respect of the child and make decisions.
Will the child be spoken to in the course of proceedings?
Children may be spoken to during the course of proceedings if they are of suitable age and viewed as competent. A Guardian Ad Litem will be appointed by the Court to ensure the wishes and feelings of the children are considered.
How can I get a care order removed?
An application to discharge a Care Order can be made in the relevant Court if there is sufficient evidence to suggest it is no longer in the child’s best interest.
