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Divorce - The First Step
Should we split up? Should we divorce?
Things to think about before you decide to divorce and making sure its the right decision.
The first question I ask any client who wants a divorce is "Are you absolutely sure?" If youre reading this youve probably already thought about it a great deal but maybe youre still unsure. Its important to look before you leap and properly evaluate your concept of marriage and the impact that divorce will have before making such a life changing decision - as you might find theres no turning back to save the marriage once youve communicated your decision to your Husband.
It can be all too easy to make a hasty decision in the midst of an emotional wrangle and assume that the grass is greener on the other side, especially when times are tough. But the odds are that the grass is not greener and you may only be swapping one set of problems for a whole new set. Ask yourself honestly if it may be harder work in the short term, but more beneficial in the longer term, to face the problems in the marriage head on now and make a genuine effort to resolve these before resorting to divorce.
Forget about the romantic ideal and instead consider what a marriage really is and what it takes to make it work. Consider the following:
- Have you and your spouse taken the time to talk, listen to each other and isolate problems so that these can be addressed? If not, why not? Is it not worth trying?
- Do you still have the same goals? If so, do you just need to recognise this and refocus?
- What has changed since the days when things were good? What can you do to get the good times back? Do you both want this and are you both prepared to work towards this?
- Have you tried marriage guidance counselling? (see Links page for Relates website)
- If you did separate how would you be affected in more practical terms? Ie;
- What will happen to the house?
- How will your income/savings/retirement be affected?
- If you have children, how will you tell them? Who will care for the kids day to day and how will you ensure that the other parent still sees the kids regularly?
- How will your wider family react?
- How will you feel about dating again?
You might find it helpful to write out a list of pros and cons of staying together versus separation and compare the two. This, along with consideration of the above factors, should hopefully help you make a more balanced decision.
Divorce is never easy but you may decide that it is a necessary process in order for you to move onwards in life. The process of honest evaluation, however, will help you to make the right decision for you.
What if its not your decision? What can you do?
It can be a massive shock to be hear that your Husband wants a divorce, even if there have been obvious difficulties in the relationship for some time.
The first, and only, thing you can do if you dont want to divorce is to invite your Husband to talk things through and discuss whether there is anything that can be done to save the marriage. (See the above considerations) You can also try to encourage him to attend marriage guidance counseling with you (see Relate website).
If it becomes clear that a reconciliation is not possible, however, then you must begin the difficult task of coming to terms with the fact that the marriage has broken down beyond repair. Only then can you focus on what must be done next to clear the way for you to move forward in life and begin to heal yourself. You dont have to rush into this; give yourself time to grieve for the loss of your marriage. Be aware though that it is sensible to take legal advice at an early stage so as to ensure that your position as regards property and maintenance etc is protected.
It is also important to keep in mind that the temptation to be difficult and obstructive in the divorce proceedings and in relation to financial and children matters may be great if you blame your spouse for the breakdown of the marriage. This is never healthy for either yourself or the children, however, and it will often only lead to more misery and vastly inflated legal costs. Remember, anger and bitterness will only eclipse your ability to be a good parent and prolong your heartache.
Instead, accept the support of family and friends who will doubtless prove to be invaluable. Focus on improving your own life and enjoy rediscovering yourself as an individual.
When separation is inevitable what to do next and how to protect your position.
Once the difficult decision to separate has been made, you will need to give thought to the following:
- Telling your spouse (if you have made the decision). Pause to consider that even if there have been problems in the relationship the word divorce can be shocking, frightening and extremely upsetting. Try to do it gently.
- Should you get on with the divorce now or let things settle and pursue the formal process of dissolving the marriage later? There are advantages and disadvantages to either option (these are addressed further in the Legal Process and Financial Sections). Are you ready for the formalities of divorce or do you just want to try out separation for a while first?
- Where will you both live after separation at least in the short term whilst the longer term decisions are being considered? Who will move out of the matrimonial home and how will the mortgage and bills be paid?
- If you do decide to get on with the divorce sooner rather than later, who will be the Petitioner and issue the proceedings and who will be the Respondent? On what basis will proceedings be issued? (see The Legal Process below) Who will pay the cost? Will you each want a solicitor and agree simply to pay your own respective legal fees or will you try and share the cost?
- If you have children, how are you going to tell them? Who will the children live with? Will you try to share care of the kids? What will you do to ensure the children maintain regular contact with both parents?
Particular Precautions on Separation - Property Rights
Property in One Spouse`s Name Only
Before making any decision on who should move out, make sure you first check whether the house is owned in the joint names of you and your Husband or just in his name. If it is just in his name then you need to register what is known as a Matrimonial Home Rights Charge at the Land Registry. This will protect your interest in the property, in that should he try to sell this at any time then a prospective purchaser would want to see your charge removed from the register before completion could take place. Without it, your Husband could sell the property as sole owner and swan off into the sunset with the proceeds! Once the Matrimonial Home Rights Charge is registered you cannot be evicted from the property without a Court Order being made.
In order to register a charge it is necessary to carry out what is known as an Index Map Search at the Land Registry. This will provide the Title Number, which is the unique reference number for the former matrimonial home. Once this is to hand, documentation for the charge can be prepared. It is wise not to voluntarily leave the property before registering the charge as to do so could be to relinquish your current rights of occupation.
If, however, you are at risk of domestic violence and you feel it is necessary to leave for your safety, you must do so. There are other options in those circumstances for securing your right to return to live in the property, such as an application to the Court for an Injunction, known as an Occupation Order or a Non Molestation Order.
You should remember that the police are on call for you 24 hours a day, 7 days a week and you must inform them of ALL incidents of violence which occur. It is also advisable to keep a diary of any such incidents to assist your memory should the time come that an application to the Court becomes necessary.
Joint Owners
If you own your matrimonial home jointly with your Husband, then the joint tenancy can be severed by either of you, converting it into what is known as a tenancy in common.
This should be considered by joint tenants when a relationship has broken down. What it means is that if your Husband dies before you (before the financial matters are resolved overall) then if your house is still held in joint names as joint tenants, then your Husband`s share (ie the whole house) will automatically pass to you regardless of any contrary provision in his Will, whereas if the joint tenancy has been severed, then his share will be left to his estate to be passed on by Will, or the rules of intestacy in the absence of any Will. The chances are that if you dont have a Will then your next of kin will be your spouse (until Decree Absolute) so if you do sever the tenancy you also need to make a Will specifying your intended beneficiary.
In practice, you may wish to consider severing a joint tenancy if you are in poor health and do not wish to run the risk of your former spouse receiving your share of the property in the event of your death. Remember, however, that this works both ways! If you sever the tenancy and your spouse predeceases you, then similarly his share will no longer automatically pass to you!
If you want to make a Will then Womenlegal`s Louise can help you. Contact her on 0800 174223 or see Profiles for Louise`s details.
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