Having provided advice and representation in this area of
law for many years, we are aware that frequently there can be confusion and
misunderstanding about the legal process when a relationship breaks down. Here we address some of the common fallacies
upon which people frequently seek our advice.
- That a Divorce can be completed ‘online’.
In Northern Ireland, this is not
yet the case. In October 2015, plans were
announced by the Northern Ireland Assembly to consider whether a system
similar to eBay could be put in place to allow those wishing to Divorce to do
so online, similar to the system used in the Netherlands and Canada. It remains
to be seen how this would work in practice, particularly in complex cases. The
traditional system in Northern Ireland remains at present, where proceedings
are issued in paper format and the Petitioning party is required to attend
Court to give evidence for the Decree Nisi to be granted.
- The reasons for the Divorce will impact on the financial settlement.
This is a misconception that can
cause great surprise to the ‘wronged’ party. People are often surprised to hear
that because their spouse has, for example, committed adultery, this will not
mean that they get more out of the pot of finances because they are to
blame. Only in very rare cases will the
conduct of one of the parties be sufficient for the Court to penalise them in the
financial settlement i.e. where it would be unfair to the other party to
disregard it. This may refer to rare and extreme cases such as serious
financial misconduct, or where one party has caused serious injury to the
other, leaving them unable to work, for example. In general, where a husband or
wife’s behaviour has caused the marriage to end (e.g. by way of adultery or
unreasonable behaviour) it is unlikely that that behaviour will be sufficient
to impact upon the financial settlement.
- That when a party separates they need a ‘legal separation’.
There is no formal requirement
for a separating couple to record their separation either with the Court or
with Solicitors in order to permit them to seek one of the separation grounds
for Divorce
in the future. Separation is usually obvious i.e. one or both parties leaving
the matrimonial home, or if neither party is able to move out, can be evidenced
by separate bedrooms, and socialising, eating, cooking and doing chores
separately. Sometimes a ‘legal separation’ can refer to a resolution of the
matrimonial finances, by way of Matrimonial
Agreement, which aims to reach resolve all outstanding financial matters
pertaining to the marriage.
- It is possible to get ‘everything‘.
It is highly unlikely that one
party will be awarded the entirety of the assets in a case. Each case is dealt
with in a fact-specific way, with the ultimate objective to obtain fairness for
both parties; it would therefore be unusual if this meant that one party would
be left with nothing.
- It isn’t adultery post separation.
While the parties remain married,
sexual relations with another person can still be cited as adultery, even post
separation.
- You are automatically divorced after a lengthy separation.
This is not the case – even where there has been a very lengthy separation (10 or 20+ years) you never ‘automatically’ become divorced. One of the parties to the marriage is required to make an application to the Court for the Divorce process to take place.
Naomi Devlin is a Solicitor in the Family Department at Worthingtons Solicitors : For advice, please visit our website www.worthingtonslaw.co.uk or contact Naomi on 028 9181 1538 or 028 9043 4015.
028 9181 1538 