SEPARATION AND DIVORCE: KEY ISSUES
Separation and divorce is said to be one of life’s most stressful events. In this article, Carrie Stewart looks at the main issues and answers some of the most common questions clients ask when contemplating such an event.
If your marriage has encountered difficulties and you are considering separating from your spouse, if you have already made the decision that the marriage has irretrievably broken down or if your spouse informs you that they want to end the marriage it is essential to take legal advice at the earliest possible opportunity.
There will be many important issues to consider on the breakdown of a marriage, for example, the arrangements to be put in place in respect of the children of the family and the appropriate distribution or full and final resolution of any matrimonial property, and the process by which this is to be achieved.
Undoubtedly however, one of the issues at the forefront of clients’ minds upon the breakdown of a marriage is that of divorce proceedings and how the marriage will ultimately be legally dissolved by the Court. Below are some of the main questions clients ask when considering divorce.
1. I have separated from my spouse, can I get divorced straight away?
In Northern Ireland you must have been married for a period of at least two years before divorce proceedings can be commenced.
2. What do I have to prove to satisfy the Court that my marriage should be dissolved by divorce?
The Court must be satisfied that your marriage has irretrievably broken down and there are five facts which can be relied upon to satisfy the Court of this. These five facts are divided into fault and non-fault based options as follows:-
> Fault Based – Adultery, Unreasonable Behaviour or Desertion
> Non-Fault Based – Two years’ separation with the other spouse’s consent or five years’ separation with no consent required from the other spouse
We will be able to advise in relation to the various options available to you and assist you in deciding how to proceed.
3. Can my spouse contest the divorce?
On occasion a divorce will be contested by the respondent spouse. In these circumstances the divorce will be dealt with in the High Court of Justice in Northern Ireland. If from your instructions it seems there is a possibility that the divorce proceedings will be contested by your spouse we will ensure that you are fully informed of the process of a contested divorce.
4. Do I have to attend at Court?
Yes, the petitioning party will be required to attend at Court when the divorce is listed for hearing. If the Judge is satisfied that the marriage has irretrievably broken down, the Decree Nisi will be granted on that day. Only one Court attendance is required in a divorce case which is uncontested.
5. When will my divorce be finalised?
A divorce is not finalised until the Decree Absolute has been extracted. This can usually be applied for six weeks after the date on which the Decree Nisi is granted. If however, there are outstanding issues to be resolved in respect of the matrimonial finances the Decree Absolute will not be extracted until any such issues have been finalised.
6. I do not believe in ending my marriage by divorce, is there an alternative?
Some clients may not wish to get divorced for religious or other reasons but they may wish to formalise their separation and have the option of applying to the Court to resolve matrimonial finances. In this instance it may be the case that a Judicial Separation should be considered. The process of Judicial Separation is very similar to that of divorce however at the end of the proceedings your marriage will not be dissolved and you will still remain married to your spouse. If either spouse wished to re-marry they would still be required to separately issue divorce proceedings.
7. Will I be entitled to Legal Aid?
Legal Aid may be available for divorce proceedings. Applications for legal aid in this regard are required to pass both a financial and a merits test. Your entitlement to legal aid will be discussed with you during your initial consultation.
If you want more information about any of the issues raised in this article, please contact Carrie Stewart. Full details of the circumstances personal to your case will be taken during the course of an initial consultation with you and the appropriate guidance and advice provided accordingly.
Thomas Taggart & Sons have many years’ experience representing clients in relation to a wide range of matrimonial matters and will be able to guide and assist you through this difficult time in order to achieve the best outcome possible.