FAQs about Family Law

What is required for a divorce?

For a married couple to get divorced they have to have been married for a period of 12 months.  One of the following reasons must also apply to show that the marriage has “irrecoverably” broken down:

  • That the spouse committed adultery and the couple cannot be expected to live together
  • The spouse has shown unreasonable behaviour
  • The couple have lived apart for 2 years or longer and both parties agree to a divorce
  • The spouse has deserted their partner for a period of 2 years or longer

What is the procedure for divorce?

In the first instance, an application to the courts has to be made.  If the court is uncontested and there are no major issues regarding the division of assets, the procedure is fairly quickly and simple.  Two decrees will be issued by the court.  The first one, decree nisi, will state the divorce will be legally completed within 6 weeks.  The second one, decree absolute makes the divorce legally concrete.

What is required for separation?

Separation is legally known as ‘judicial separation’.  The process is generally easier and simpler than getting a divorce.  The couple does not need to have been married for a period of 12 months, but one of the above reasons need to apply to show the couple cannot remaining living together.

How are children custody/residence issues resolved?

In the majority of cases, parents will come to their own private arrangements regarding the residence and care of a child after divorce.  Mediation through solicitors and other means can also aid this.

However, some cases are contested and end up in court.  Where this happens, the courts will assess the capability of the parents (and anyone with parental responsibility) to take care of children, the arrangements up until the time of the divorce and fundamentally what is in the best interests of the child.  A CAFCASS (Children and Family Court Advisory Service) officer will be asked to compile a report which the courts will use to aid their decision.

When is a child custody/residence relevant to the law?

Normally, the law will apply to children aged up to 16 or 19 in the case of children in full time education.  If, however, the parent’s son or daughter is disabled and requires care from either or both of the parents, residence laws can apply up to any age.

Are pre-nuptial agreements legally valid?

Pre-nuptial agreements are still not entirely binding under the law.  The courts will, however, take into account the existence of one if the marriage ends in divorce provided that:

  • Both husband and wife sought independent legal advice regarding the consequences of the agreement
  • There is full financial disclosure relating to income, assets, pensions etc.
  • The agreement is reasonably fair for both parties
  • Both parties entered the agreement under their own free will i.e. without pressure from others.

It should also be borne in mind that the birth of any children can radically change the nature of the marriage such that the court will no longer take into account the agreement.

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