How We Can Help
Every family is different – and recognising that as we work to achieve your best outcome is one of our key guiding principles. Having said that, there is a lot of information that applies in many situations. We have taken key points about divorce, separation, and cohabiting and included it below as we look at some frequently asked questions.
I recently contacted James Belderbos for advice as my marriage was in a difficult position. We had a good chat and the advice and help he gave me was excellent. He did not tell me just to get a divorce but discussed whether I actually wanted one and how I might try and work things out with my partner which is what I’m going to do. Not everyone might have done this but James went the extra mile and I really appreciated his help.Mr Q Melton Mowbray, Leicestershire
Family Law Frequently Asked Questions
Use this guide to find basic answers to some of the questions you may well have, including all of the following family law situations:
- Married or Civil Partnership
- Children and Separation
- Unmarried Couples
- Other Questions Relating to Divorce
- Family Law Myths
Married or Civil Partnership
- I’m worried about my relationship and thinking about separating what do I do?
- Firstly whilst you may have believe you reached a point of no return you should think very carefully before embarking upon a divorce. If you do not have a trusted friend or family member then we would strongly recommend that you seek advice from a counsellor or therapist. Having spoken to them you may feel that your relationship is worth another try.The consequences of divorce are significant and will affect you for the rest of your life. It will also have significant impact on your wider family. You may feel that you want some legal advice and perhaps a short meeting with a solicitor to find out the basics will help. A specialist family lawyer who will help you identify the main issues which are particular to you. Whilst there is much information available on the internet and elsewhere some of which is helpful and some not, all cases are different and there is no substitute for specific advice.In the first instance seek psychological support either through friends, family or a specialist counsellor may help you through what is a terribly debilitating emotional time.
- So if I decided I want to get divorced what do I need to think of?
- A family specialist solicitor will assist you in identifying the key issues. The following may be concerns, where will the children live? When will I see the children? Where will I live? What will happen to the family home? Will I get maintenance and for how long? I don’t have a pension can I share my husbands?The answers to some of these questions may make you reconsider your position but your solicitor will help you gather together all the relevant information to help you make the right decisions. Whilst you can undertake the work in obtaining a divorce yourself you should ensure that you are aware of the implications of any settlement. A short term solution may be attractive to resolve the immediate pain but you should also consider the long term implications of any settlement involving children or finances.
- We got married abroad can I get a divorce in England and Wales?
- Yes and whilst you may need to obtain a translation of your marriage certificate if you are both living in England and Wales. Even if one of you is now living overseas you can still petition the court for a divorce in England and Wales. There are jurisdictional issues which apply and you should seek specific legal advice.
- What are the alternatives to a divorce?
- You can if you wish simply separate and live apart without reaching a formal agreement on finances. Live separate and apart and questions about finances or other matters are agreed in correspondence between solicitors. For reasons which we can explain these are not options we would advise. In addition, you sign a formal separation agreement setting out the terms of your separation. Obviously, this is only possible if you both agree or you apply to the court for a decree of judicial separation. The process for this is almost exactly the same as that for a divorce and you will need to rely on one of the five facts that apply for divorce. The court can then make an order about finances, but this is not a final order.In any case if one of you started a divorce later on, either of you could apply to the court for financial provision. The judge will then consider all the circumstances and make an order that he or she thinks is fair. The judge does not have to stick to an agreement you have reached, even if it is by way of a formal separation agreement or a financial order as part of a judicial separation. However, any agreement that you may have reached would be taken into account as one of the factors by the judge.
- I am nearing retirement or retired are there any special considerations on getting divorced?
- There are some special considerations when divorcing when you are nearing, or have already, retired. Read more in our article Divorcing in Later Years.
- Divorce Procedure including how long it will take?
- Provided that each party cooperates a divorce can be processed in six to eight months but there are many factors that can lead to delay. These include the backlog at court, delays by the parties and sometimes solicitors. What often leads to greater delay is the need to resolve the financial aspects of the separation within the divorce.
James was recommended to me when I was new to the area and looking for a good lawyer to help me with my divorce which can be a painful process to go through.
Not only was James extremely attentive to accuracy and detail, he showed compassion and kindness (a trait not often associated with lawyers!) and steered me towards reaching a satisfactory result with my divorce.Ms B, Nottinghamshire
- How much money will I receive?
- One of the significant concerns for many couples facing separation is, “Who will get what?” Solicitors often talk of the matrimonial estate to describe the assets and income of the married couple. The situation is very different for unmarried couples. You should take specific advice. The law is evolving constantly and the court will look at certain factors to determine who is to receive what. It is often the needs of the parties which and in particular the need for the parties to rehouse which is the court’s primary consideration.
- I have moved out of the matrimonial home, can I stop paying the mortgage?
- Separation puts a considerable strain on family finances. If you have to move out and rent a property where you can live then this can represent an extra considerable strain. Unfortunately, the fact of your separation does not relieve you of your obligations under a Mortgage Deed. You should seek advice on how to manage finances and what your entitlements are.
Children and Separation
- Will I get paid maintenance for the children?
- It is advisable for you and your partner to agree on a sum for maintenance for the children between you. If you are unable to do so then you may be dependent upon statutory rules which take the decisions away from you and your former partner. If you enter into an agreement you may consider entering into a Family Based Arrangement which may help you enforce any agreement if your former partner fails to pay.
- Can I get shared custody?
- Legislation passed in 2014 failed to codify the courts in fact facilitate such. If the court is to make such an order then the order must specify the periods during which the child is to live in different households.
- Do I need to go to court for an order regarding a child or children on separation?
- It is not necessary to seek an order in respect of children. The court encourages parents to resolve differences that they may have regarding the children between themselves. In fact, the non intervention principle means that the court should not make an order unless it considers making an order is better for the child. If the court were to make an order it would have regard to the welfare checklist.
James Belderbos represented me through a divorce. He was easy to talk to and explained anything I didn’t understand in simple terms.
Divorces can be very stressful and personal, but I always felt comfortable talking to James. I highly recommend him because without his knowledge I wouldn’t be where I am today.Ms Q, Leicestershire
Other Questions Relating to Divorce
- What will happen to the family pets?
- Family pets can cause further arguments on separation. There will be many practical considerations to take into account including accommodation if it is a larger animal and the costs associated with keeping and maintaing animals including food and vets bills. Hopefully an agreement can be reached. If no agreement is reached then a court can decide who is to keep it. The courts treat animals as an item of property and may seek to establish ownership through examining evidence put forward by each party but can if necessary make a determination as to who is to have the pet like it can with other property. There may be some benefit in sharing a pet if it will lead to agreement. Where positive communication is possible then attempts should be made to reach an agreement. Difficulties can be overcome by a properly drafted Cohabitation or Living Together agreement or a prenuptial agreement.
- Can I change the locks?
- If your spouse or partner has left and you wish to prevent their return then you may consider changing the locks to prevent them returning to the property. Caution should be exercised before doing so.Your spouse or partner may simply want to return to collect paperwork or other property and this could be better achieved by arranging for the property to be collected by a third party. To change locks without agreement may result in your spouse or partner arranging for a locksmith to remove the locks to facilitate access or breaking in. This would be confrontational and may amount to an offence of criminal damage.The property may be jointly owned in which case you can only change the locks with the consent of the co-owner. If however there are sufficient grounds for obtaining a Non molestation or Occupation Order then this in itself should act as sufficient deterrent if granted to prevent your spouse or partner returning. Such orders are only available where there have been incidents of domestic violence.
- How can I help a friend or family member going through a divorce?
- As a friend you can assist in many ways but primarily you may consider it appropriate to limit your help to emotional and practical support.A divorce is in many a respect is similar to bereavement and they will experience a series of emotions. Whilst you may have had a family member or other friend go through a similar process and feel you “know the ropes”, however it may be sensible to exercise caution if you feel you can offer your friend legal advice.Those going through a divorce would benefit from advice from a specialist family solicitor who will be able to give them specific advice according to their individual needs. You may wish to read some of our family law myths to see how some legal concepts are misunderstood and even well intentioned advice can be misleading.
- What support is available to couples facing difficulties in their marriage?
- There are many organisations which can help or provide resources to those going through a separation including Relate and Children and Family Court Advisory and Support Service (“CAFCASS”) who run programmes such as Separated Parents Information Programme. CAFCASS also produce a booklet entitled The Parenting Plan or an online facility.
- I would like to give my son or daughter a deposit for a house how can I protect that money in the event they separate?
- There are a number of options including a secured loan in the form of a legal charge or mortgage on the property which will protect your investment subject to approval of any primary lender. You may also consider an unsecured loan in the form of a loan agreement. These options can be used to strengthen a Living Together or Cohabitation Agreement.
James Belderbos delivered an excellent professional service.
Great communication, understanding, explained everything clearly and kept me up to date with things. I was made to feel that my needs were of importance any correspondence and telephone calls were responded to very quickly – I would have no hesitation in recommending JamesMs W Leicestershire
- Planning to move in together
- If you are unmarried and are planning to live with your partner, we will advise you on issues such as whether you should have a living together or cohabitation agreement.
- Prenuptial Agreements
- I would like to give my son or daughter a deposit for a house how can I protect that money in the event they separate.
Family Law Myths
- Our house is registered in my husbands name and so I will have to leave if we get divorced If you are married then you will have a right to occupy the matrimonial home. The court on application has the power to vary the rights in property. The court will take into account a number of factors the first consideration being given to the welfare of a child. A wife may protect her interest in the matrimonial home by registering a caution at The Land Registry. A caution will prevent an owner selling or raising finance against the property.
- The children are staying with me so I will get to keep the house Whilst it may be ordered or an agreement reached that the children should stay with one party there is no rule that the same party should retain the former matrimonial home. Whilst the courts first consideration will be to house the children, the house could still be sold or the husband retain an interest and the house be sold when the children leave school.
- I am entitled to an interest in the house as I am a common law wife There is no such thing as a common law wife. Even if parties have lived together for many years and have had children together this does not give a party an automatic right to a share in the assets in the other parties’ name. It may be possible to argue that a partner provide capital for any children of the relationship or for one party to claim a beneficial interest.
- The house was given to me before we were married and so my ex spouse is not entitled to a share. The court will take into account many factors in determining who is to receive what out of the matrimonial estate. It is possible that the court may make an order for sale of the property and the proceeds of sale to be divided.
- The children are staying with me and so my husband will have to pay me maintenance. Whilst the courts will consider a range of powers in determining what order to make a party who may not have worked for some time will be expected to maximise their earning capacity which may include making child care arrangements to enable them to do so.
- As the divorce is my fault as I committed adultery I probably won’t get anything. The courts would regard an act of adultery as irrelevant in deciding on the distribution of assets on divorce.
- As we were married I just want my half of the assets. Where there may be cases where an equal division of assets may be appropriate care should be taken to assess whether that is fair in your particular case. You should be advised as to how to achieve fairness and what property would be regarded as a matrimonial asset and what may be regarded as a non matrimonial asset.
Mr Belderbos represented me. I now have extensive contact with my children despite many difficult challenges – it has changed my life and that of my children for the better.Obviously a talented and knowledgeable lawyer, just as importantly, James was patient, supportive and understanding – exactly the sort of person you need on your side in difficult times.Mr B, Yorkshire
Glossary of legal terms
You will find a helpful explanations to some of the terminology used in the family courts in our glossary, click here.