Divorce and Separation
The decision to separate or divorce is not an easy one. It is important you understand the basic facts including what constitutes a legal separation. We encounter many clients who assume they require a Court document to confirm the fact of legal separation. This is incorrect; a physical separation is a legal separation. This is significant if there are no other grounds for Divorce. The Family Law team at MKB Law explain the Divorce process below.
What are the different grounds for divorce?
In Northern Ireland, there are five grounds for divorce. These are divided into fault grounds and non-fault grounds.
1. Unreasonable Behaviour
This claim can be made if your spouse has acted in a way in which you cannot reasonably be expected to live with them. This behaviour can range from a number of things. This may include verbal abuse, taking drugs, drunkenness, not paying for housing expenses or physical abuse.
Adultery is claimed if your husband or wife have had a sexual relationship with another person and on those grounds you can no longer live with them. You will usually prove the act of adultery by your spouse admitting to it. If they do not admit to this you will have to discuss how you will proceed with your solicitor. It is also worth noting that if you continue to live with your partner for more than 6 months after the act of adultery you will usually not be able to use this as grounds for divorce.
Finally you can file for divorce if your husband or wife has deserted you for over two years. This basically means that your spouse has left without giving a reason or without prior agreement.
Non Fault Grounds
1. Two Years Separation (with the other spouse’s consent)
If you and your spouse have lived apart for over two years and both parties agree to the divorce you can do so without assigning blame. In this scenario you can have lived together in this time but not for any longer than 6 months in total.
2. Five Years Separation (does not require the other spouse’s consent)
You may divorce without consent if you and your spouse have lived apart for over 5 years. In this scenario your spouse cannot defend this decision.
You may find yourself in a position of not meeting any of these grounds. However you will be equally sure of the fact that your marriage has irretrievably broken down. Either through a breakdown of communication between you and your spouse, or a combination of other factors.
There are of course cases where a fault ground is available to you and you wish to use it as soon as possible. Indeed in a case of a Petition grounded on adultery it is prejudicial if you continue to acquiesce in the adultery for a period longer than six weeks. This means this ground cannot be used and your spouse has a defence.
The procedure on Divorce is straightforward: if financial and childcare issues are resolved a Petition can be presented in the County Court in a Division closest to where you reside. If these issues have not been resolved the Petition will be presented in the High Court Family Division. Find out more about the division of finances during divorce here.
How We Can Help
At MKB Law our Family and Matrimonial solicitors will draft and present the Petition without the assistance of Counsel. If a Divorce is to be presented in the High Court we will arrange for you to meet with a Barrister who will then draft a Petition on whatever ground is available to you. You will be advised on the procedure, an approximate estimate of the length of time and necessity to attend court. We will keep you informed as to when the other spouse will be served with the Proceedings in case there is an adverse reaction.
We operate a transparent costs structure so that you understand what you will be billed for, the professional fee and the outlay. You will also be informed that your spouse will be paying the costs of the Divorce if a fault ground is used and not defended. A two years separation or five years separation divorce means you may be responsible for either 50% of the costs or all of the costs of the Divorce Petition.
The presentation of the Petition takes place in a relatively short period of time and the Judge must be satisfied that arrangements for children are the best that can be achieved before the Decree Nisi is pronounced.
You are then at liberty to apply for the Decree Absolute, the document which formally dissolves your marriage, on the expiration of six weeks from the date of Decree Nisi, unless there are financial matters to be resolved. At the Decree Absolute stage you will be advised of the implications for inheritance and how it may be prudent to consider making a new Will as your spouse is no longer your next of kin.
As Solicitors, we always recommend that clients make a Will, but making one after divorce or separation is especially important. No matter how long you have been apart, your spouse remains your next-of-kin until the Decree Absolute is issued, and, in the event of your death, they will be entitled to the majority (if not all) of your estate. Even after the marriage has officially ended, a Will is important to ensure your children are provided for after your death or name guardians for your children if they are under 18. Arrange an appointment with our Private Client team to discuss making or amending your Will.