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Family Law FAQs

What is a common law spouse?
There is no such thing as a Common law spouse, regardless of how long you have been together. If you live with your partner you are cohabitees and the legal principles that apply will depend on your circumstances (such as whether you own property together). Matrimonial law will not apply.

If I’ve separated from my husband/wife do they have to carry on supporting the matrimonial home?
This is dependent on your individual circumstances. Hopefully arrangements for the family home can be agreed but if not an application can be made to the court for interim spousal maintenance or maintenance pending suit. The outcome is dependent on the case specific facts.

If we get divorced on the basis of 2 years separation is the process quicker/cheaper?
A divorce on the basis of two years’ separation is one achieved by agreement, rather than a ‘fault’ based divorce (i.e. unreasonable behaviour or adultery). The process is the same, however the petition is slightly more straightforward, and therefore it is not any quicker or cheaper than the alternatives. Getting divorced on the basis of having been separated for two years does not affect your financial claims arising from the marriage, although the change in your circumstances since separation may impact upon these claims.

My spouse/partner and I have separated. How can I get him/her out of the home?
If you own a property jointly you are both entitled to enter (including forcing entry if necessary) and occupy it, unless that right of occupation is withdrawn by an occupation order made by a court (in circumstances where there is violence or risk of violence). Both of you have rights of occupation by being each other’s spouse and those rights of occupation can also be suspended by the court in appropriate circumstances. Where no such order has been made you can either agree what is going to happen to the property, or seek an order of the court for transfer or sale if you cannot reach an agreement.

Is there such there such thing as a quickie divorce?
No, this is just a term coined by the tabloid media. The length of time which a divorce takes through the court process is usually the same for any of the five “facts” of divorce, but when the divorce starts is dependent upon whether the parties wish to wait until after two years or five years’ separation or whether they wish to initiate divorce proceedings immediately on adultery or from unreasonable behaviour. A straightforward uncontested divorce where both parties cooperate is likely to take the least amount of time to complete. Divorces can take longer where there are complicating factors.

Have I committed adultery if I am already separated?
If you are married (whether separated or not) and you have voluntary sexual intercourse with a person who is not your spouse, you have committed adultery.

If I leave the house which I own with my partner, do I give up my rights to the property?
No, your claims against the property will still exist until agreement between yourself and your spouse is determined by a Court, however any claim which you may subsequently make to move back into the property or have the property transferred to you, may be affected.

Can I get a quickie divorce?
Unfortunately, there is no such thing as a quick or fast divorce, the divorce process is fixed. There will be local variations depending on which divorce court you issue proceedings. However, on a divorce (not including financial matters) on average it takes between six and nine months depending on the court and your spouse returning the appropriate paperwork.

How do I get my husband/wife out of the house?
If you own the property jointly and you have rights to live in the property because of that ownership, if you are married to each other you have rights of occupation due to being each other’s spouse. In such circumstances, the only way to suspend occupation is to make an application to the court for an Occupation Order asking the court to prohibit the other party from living in the house. Such an application would only be made if you felt that you and your children were at serious risk of harm by continuing to live together under the same roof. The court will hear the evidence provided and decide whether an Occupation Order should or should not be made.

Can my ex stop me seeing my child?
The Court will always encourage a parent to spend time with a child as long as the time is in the child’s best interest. If the other parent has stopped you from seeing your child, then you should seek advice from a solicitor as soon as possible. Usually, unless there is good reason for the other parent’s refusal, a solicitor should be able to negotiate arrangements between you and the other parent. However, if an application to the court does become necessary then leaving it too long before making an application to the court can cause added issues and so it is always better to seek assistance from a solicitor or the court sooner rather than later.

Do I have to pay child maintenance?
The payment of child maintenance is a statuary obligation. If you are the parent of a child, who does not live with you, Child maintenance payments continue usually until a child reaches 16 (or 20 if they're in full-time education up to A-level or equivalent), even if you do not spend time with the child.

When do I stop paying child maintenance?
If you are a parent who is paying child maintenance for a child who does not live with you, then you should continue to pay child maintenance for that child until they reach the age of 16 or 20 if they are in full time education up to A-level or equivalent. Child maintenance can also cease for instance, the child stops being eligible for Child Benefit, the parent being paid stops being the child’s main carer, the parent being paid doesn’t want it any more, either parent dies or the paying parent is eligible for the NIL Rate because they’re a student or a prisoner.

Can I transfer the house to someone else to stop my wife/husband making a claim?
If you are intending on transferring an asset such as a house to someone else to deprive your spouse of a claim on the asset, then the court has the ability to overturn the transfer and return the property into the marital estate. This is also the case where an asset has been sold to someone at an undervalue, the court will use its discretion and take into consideration the disposal and may redress the loss to the marital pot by giving the other spouse more of the marital assets in compensation for the disposal. Although tempting to try and hide or dispose of assets before you consider separating, the court has the power to overturn such transfers and disposals several years before the divorce proceedings themselves.

What if I lie about my assets, will I be found out?
Although it can be tempting to not give a full account of your financial assets when you get divorced. Usually because your spouse will have legal representation this will be picked up on. It is usual practice in divorce proceedings for each party to give full and frank disclosure of your financial information. The job of a solicitor is then to review all bank statements and look for discrepancies and transfers out of the accounts to ensure that all information has been provided. If you fail to provide a full account of the information or fail to answer questions about your financial affairs, a court can order that you be held in contempt of court and could if severe be imprisoned.

Can the other parent stop me taking my child abroad?
If you are a parent of a child and the other parent has Parental Responsibility then the other parent can prohibit you from taking your child abroad without their consent. If you have a residence order or a living with order then you can take your child abroad for a period of 28 days without the other parents’ consent. If the other parent is refusing to allow you to take your child on holiday abroad then you will need to make an application to the court for a specific issue order allowing you to remove your child from the jurisdiction for a holiday, otherwise this could be viewed as a criminal offence of child abduction.


Family Team

Lindsey Canning

Deborah Marsh
Associate & Collaborative Lawyer

Victoria Walker
Family Law Executive

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