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Dealing with the breakdown of a marriage is hard enough, but it can be overwhelming trying to understand all the legal issues that arise too. The decisions that you make during your divorce can affect you for a long time so it is important to obtain proper legal advice.
There is only one ground for divorce in this country and that is that the marriage has broken down irretrievably. If you issue divorce proceedings you are called the Petitioner and your spouse is called the Respondent. As the Petitioner, you must satisfy the court of one of the following five facts: that your spouse has committed adultery, that you consider your spouse’s behaviour to be unreasonable, that your spouse has deserted you, that you have been separated for more than two years, or that you have been separated for more than five years. It usually takes about six months to finalise a divorce but it may take longer, especially if you and your spouse have family assets to divide.
The majority of people who are divorcing also have to consider how to divide the matrimonial assets. The first step is to identify and value all the assets that will form part of the ‘matrimonial pot’. This is done by providing details of your respective incomes, capital, properties and pensions. This process is called ‘financial disclosure’. In some circumstances, it may be possible to exclude certain assets from the matrimonial pot.
Once the extent, and value, of the matrimonial pot has been agreed, you and your spouse can proceed with negotiating a settlement regarding the division of family assets. If agreement cannot be reached, one of you may issue court proceedings to ask the court to determine the matter. The court takes various matters into account when considering what order should be made. It considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18, and has regard to the factors listed in Section 25 of the Matrimonial Causes Act 1973. The factors include: the duration of the marriage, the ages of each spouse, the financial needs and responsibilities of each spouse and any children, the standard of living enjoyed by the family before the breakdown of the marriage, the conduct of each spouse etc. The list is not exhaustive. The court’s objective is to achieve a fair outcome. A fair outcome does not necessarily mean an equal division of family assets. The court can make orders in relation to maintenance, property, capital and pensions.
Once the divorce is finalised (Decree Absolute is pronounced), your former spouse may still be in a position to make a financial claim against you or your estate. He or she can make such a claim at any point in the future before they remarry. The only way to avoid such a claim being made against you is to ensure that your respective claims against each other are dismissed. This is called a clean break. The clean break clause is usually included in the Consent or Court Order, although in some circumstances, it will not be appropriate or possible to have a clean break.