Family and divorce: family law expert answers your key questions

PUBLISHED: 09:22 03 December 2020 | UPDATED: 09:22 03 December 2020

Even if an asset is in your name, if you bring it into a marriage, it’s then shared between you and your partner. Picture: Getty Images

Even if an asset is in your name, if you bring it into a marriage, it’s then shared between you and your partner. Picture: Getty Images

Copyright (C) Andrey Popov

If you or your partner are filing for divorce, it’s important you understand your legal rights.

Picture: Getty ImagesPicture: Getty Images

Justin Creed, head of family law at Wright Hassall puts his 30 plus years’ experience to the test and tackles your most commonly-asked questions about divorce.

Q: What rights do I have if I split up with my partner?

A: Once you marry, any assets you bring into the marriage become shared property. This means that if you divorce, you can claim for a share of any property in addition to financial support (or maintenance). You can also claim for a share of your partner’s pension if either you don’t have one, or your pension provision is far lower. The starting point for a judge deciding on a claim is a 50:50 division of assets although they will take into account various factors before deciding on the final settlement, including the length of the marriage and needs

The same claims are not available to couples who are separating but never married.

Picture: Getty ImagesPicture: Getty Images

Q: How do I protect my assets in a divorce?

A: The most practical way to protect any assets is to make a pre-nuptial agreement before you walk down the aisle. Although they are not legally binding, they will be considered during financial proceedings in court if you have not been able to agree on how your assets should be divided. A pre-nup may influence the judge’s decision in court, but they don’t have to abide by it.

Q: Can one parent stop the other from seeing their child?

A: If you decide to separate, whether married or not, it is up to you and your partner to try and agree the arrangements for your children. One parent cannot unilaterally stop the other parent from seeing the children without good reason. If you cannot agree, you can go to court to seek a child arrangement order. The court will investigate and decide on your behalf, taking into account the best interests of the children. Once a court order is made, you must adhere to it and you can only vary it by going back to court.

Q: Does the same apply to grandparents?

A: Unfortunately, grandparents do not have an automatic right to go to court if a parent is stopping them from seeing a grandchild. The court has to grant them initial permission to apply to see their grandchild. The court would decide whether or not to grant them access to the child based on a number of factors, such as the nature of the relationship between them and the child.

Q: What does an at fault divorce mean?

A: At the moment, you can only apply for a divorce if you can show that the marriage has broken down irretrievably which can only be proved through five grounds: adultery, unreasonable behaviour, desertion, separation for at least two years with both of you agreeing on the divorce, or five years separation when the decision can be unilateral.

The law is changing so, from autumn 2021, you will be able to apply for a divorce by simply by giving your partner notice, or you can apply jointly. But, for now, you have to prove that one of you is at fault or that you have satisfied the periods of separation.

Q: Have you got any advice for couples divorcing?

A: If you have children, put them first – their welfare is paramount. I do try to encourage divorcing couples to try and focus on what is important. Regardless of the reason for the divorce, it is one of the most emotionally difficult things anyone can experience but trying to keep things amicable and keeping a sense of perspective are crucial. Regardless, it is important to understand your rights and, contrary to opinion, seeking legal advice early on can help to prevent negotiations getting bogged down or acrimonious.

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