A Simple Guide to Divorce Procedure in NI

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Ending a marriage can be one of the most difficult and stressful times in a person’s life.

Making the decision to end your marriage brings with it many worries and fears about how life will change upon divorce. The last thing that any person going through a divorce wants to worry about is having to navigate a long, complicated legal process to reach the end result.
It will be a relief to many that the legal procedure for divorce here in Northern Ireland is fairly straightforward. We have put together below some information for you to explain how this process works.

What is the procedure for divorce?

The first step in getting divorce is to issue what is known as a Divorce Petition. This is simply a document which sets out details needed by the Judge to consider your divorce. Importantly, the Petition will detail the grounds on which you are applying for a divorce. If you are the person who has filed for divorce, you will be referred to as the ‘Petitioner’ in these proceedings and your spouse will be referred to as ‘the Respondent’.

The Divorce Petition, once finalised, is then stamped by the Court and served on your spouse who is asked to complete an Acknowledgement of Service Form and lodge this with the Court. This form will confirm that your spouse has received the divorce papers and will detail whether they intend to defend your Petition for divorce.

If your spouse is not challenging the divorce, the case will then be listed for a Decree Nisi hearing.

What is a Decree Nisi hearing?

This is the initial hearing where the Judge will have to determine whether your marriage has irretrievably broken down.   You must attend at Court and give evidence at this hearing.   If the Judge is satisfied that the grounds for divorce have been met, a Decree Nisi is granted – this is an Order stating that are entitled to obtain a Divorce.

Am I divorced after I get my Decree Nisi??

No. The Decree Nisi is simply the first stage of the divorce. In order to be fully legally divorced, you must obtain a Decree Absolute.  You may apply for a Decree Absolute six weeks and one day after the Decree Nisi hearing. Your Solicitor makes the application for a Decree Absolute after this time has passed and you are not required to attend at Court.

What about the family finances and property?

Often, if the division of the family finances and property has not been agreed between you and your spouse, Court Proceedings would then be issued to decide how to divide the finances. These proceedings are called Ancillary Relief proceedings.  In cases where the family finances and property have not been finalised, the Petitioner is generally advised not to apply for the Decree Absolute until after the finances are resolved.  This is because both parties could lose certain rights such as widow pension benefits.

How much will a Divorce cost?

There will be Court fees payable for issuing divorce proceedings.  these include a fee for the issuing of the divorce petition, setting the case down for Hearing and then obtaining a copy of the Decree Absolute.  these fees increase every tax year though are currently around £600-£700.00.   There will be solicitor’s professional costs on top of this.  Most solicitors will give a quote for a divorce in advance of lodging anything with the Court.   Legal Aid may be available depending on your financial circumstances.

If Ancillary Relief proceedings are issued to resolve the financial matters after Decree Nisi, legal costs are likely to be calculated on a time-spent basis.  It is important that you speak with your solicitor about costs before issuing proceedings.

What about the future?

If you had made a Will before getting divorced, it is important to review this after your divorce. Once a divorce has been granted, any part of a Will leaving property to your former spouse will be invalid.

Although a divorce ends your marriage, often you and your former spouse will have to continue to share a relationship with one another for the sake of your children. It is therefore in everyone’s interests to try to ensure that the divorce, if at all possible, is dealt as amicably as possible so that despite your differences at the end of their marriage, you can both move on to the next stage of your lives.

If you would like more information on the legal process of divorce or if you have a query regarding your own divorce, please do not hesitate to contact claire or karen by email or leave your comments confidentially below.

*October 2015

 

 

Divorce in NI – How Hard is Breaking Up to Do?

familynewThe Supreme Court has refused to allow 60-year-old Tini Owens a divorce from her husband of 40 years despite Mrs Owens claiming her husband had behaved badly towards her and she was unhappy in the marriage.  

Mrs Owens and her husband Hugh married in January 1978.  They separated in August 2013 with Mrs Owens stating that her husband had behaved unreasonably during their marriage in his “continued beratement” of her.  She gave examples of this behaviour in her divorce petition, which included criticising her in front of their housekeeper, arguing with her in an airport shop and not speaking to her during a meal.  Her husband was not accepting of these criticisms of his behaviour and defended the divorce. 

The Judge who dealt with the divorce hearing concluded that Mr Owens’ behaviour towards his wife had not been unreasonable and refused to grant a divorce, stating that Mrs Owens’ allegations were “exaggerated”, “flimsy” and that her husband’s conduct was “of a kind to be expected in a marriage”.   Mrs Owens claimed that this decision meant that she was effectively “locked in” to her marriage, and that it was unfair that she would have to wait 5 years before being allowed a divorce without her husband’s consent.

Mrs Owens appealed to the Court of Appeal who also rejected her arguments, and as such the matter was appealed onward to the Supreme Court where today, five Supreme Court judges have unanimously upheld the lower Court’s rulings. 

Following analysis of legal arguments, the Supreme Court President Baroness Hale stated that whilst she found the case “very troubling”,  it was not for Judges to “change the law”.  Lord Wilson indicated that it was a question for Parliament as to whether the law governing entitlement to divorce remained satisfactory.

So, what is the current law on divorce in NI?

The Owens case has given rise to calls for a change in divorce law as it stands in the UK and NI.  But what is the current law?  I’ve set out some of the main factors that principles legal position on divorcing in Northern Ireland:

1. You need to be married for at least 2 years before you can divorce.

In Northern Ireland, it is by no means the case that any married Tom, Dick or Harry (or their female counterparts!) can get a divorce.  Firstly, you need to have been married for at least 2 years before you can petition for divorce. This doesn’t mean that you are compelled to continue living with your spouse for a full 2 years – you can of course live separately.

2. You need to satisfy a ‘ground’ for divorce.

When applying for divorce, you must show that your marriage has ‘irretrievably broken down’ and you must satisfy one of the following grounds for divorce in order to evidence this breakdown: –

  • Unreasonable Behaviour  -This is where you submit that your spouse has behaved so unreasonably that you can no longer be expected to live with them. Types of unreasonable behaviour are wide ranging and can include physical or verbal aggression, lack of communication, financial control or misconduct and addictions
  • Adultery – In order to petition for divorce on the ground of adultery, you need to show the Court that your spouse has committed adultery during the course of the marriage. The person with whom your spouse had the affair can be joined and named in the divorce papers also.
  • Two Years’ Separation With Consent – This ground is available where both you and your spouse have lived separately for more than 2 years and your spouse consents to the divorce. You can have been living in the same property during this time but must have lived independently to one another. This can happen where, for example, you both live in the same house but have separate bedrooms and would not cook or clean or spend time with one another.
  • Desertion for Two Years – This is proven where your spouse has effectively ‘deserted’ you. This ground is technically difficult to prove and is very rarely relied upon in divorce proceedings.
  • Five Years’ Separation – This ground is available when you and your spouse have lived separate for more than 5 years. You do not require your partner’s consent on this ground.

What About A ‘No Fault’ Divorce?

High profile cases such as the Owens case have given rise to a call for a “no fault divorce” to be introduced into the law.  It is presumed that a ‘no fault’ ground for divorce would allow unhappy couples to formally end their marriage without either person being held responsible for the breakdown of it. Some say that such an option could ease some of the stress, pain and bitterness that couples often endure during separation. Others believe that to make it effectively ‘easier’ for couples may damage the sanctity of marriage and that couples may not think carefully enough before entering into a marriage if they feel that they can easily divorce if it doesn’t work out.

Both sides of the argument have valid points however in my experience as a lawyer in this area, no divorce is ever ‘easy’ – feelings are hurt, emotions are high and often children are caught in the middle.   It will be interesting to see whether steps are made by the government to introduce such a ground in light of today’s judgement.

If you need any further information on divorce please feel free to contact us here

LIFE BITE: A Faulty Divorce – Supreme Court to hear contested ‘unreasonable behaviour’ divorce case today.

apple-150579_1280Five Supreme Court judges will today begin deciding whether to grant Tini Owens a divorce from her husband,  after the lower courts decided she was not entitled to one. 

Tini Owens is the wife of Hugh Owens, a multimillionaire farmer whom she married in January 1978 and separated from in August 2013. 

In her divorce petition, Mrs Owens stated that her husband had behaved unreasonably in his “continued beratement” of her.  She outlined his conduct in her divorce petition,  which included criticising her in front of their housekeeper, arguing with her in an airport shop, not speaking to her during a meal and making her pick up bits of cardboard in the garden.  She submitted in her divorce petition that this behaviour amounted to divorce .

Mr Owens claimed that he had forgiven his wife for her “misguided” fling in 2012, and told the Court that he wanted to remain married to his wife as they “still have a few years of old age together”.

The Judge hearing the divorce in the first instance,  concluded that Mr Owens’  behaviour towards his wife had not been unreasonable and refused her divorce petition last year.

The Judge described the farmer’s attitude as “old school” and stated that Mrs Owens’ allegations against her husband were “exaggerated” and “at best flimsy”.  The Judge further claimed that the conduct described by Mrs Owens were “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel”.

The Judge also found that Mrs Owens was “more sensitive than most wives” and that she had “exaggerated the context and seriousness of the allegations to a significant degree”.

Mrs Owens has claimed that as a result of the Court’s refusal to grant her a divorce, she was effectively “locked in” to her marriage with Mr Owens. She claimed that it was unfair that under current law she would have to wait five years before being allowed a divorce without her husband’s consent.

Mrs Owen’s legal representatives have submitted that it is unreasonable to expect her to stay in the marriage, with her barrister adding: “There doesn’t have to be violence, or threats of violence, or gambling or drinking or shouting. There is cumulative effect of what may be regarded as inconsequential conduct, which may justify a finding that it is unreasonable to expect her to stay with him.”

Mr Owens legal representative told the Court that the initial divorce Judge had been “entitled to reject the wife’s case”. The Court of Appeal rejected Ms Owen’s appeal and the matter is now before the highest Court in the land and it is expected that the Supreme Court will deliver judgment on the matter later this year.

For more information on the grounds for divorce here in Northern Ireland, you can read our earlier blog piece ‘Divorce – What are the Grounds?’ or contact us here.

 

 

 

International Divorce : Things To Consider

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The world is becoming a smaller place with ever greater opportunities for people to travel and work abroad.   Increasing numbers of people are meeting and marrying someone from another country and as such, many families now have both a multicultural and an international dimension which would have been far less prevalent a decade ago.
If this family unit breaks down, there are a number of additional issues which can arise.  Here are some of the ways an international dimension can have an impact on family breakdown:
It may be possible for divorce proceedings to be brought in more than one jurisdiction.

The choice of jurisdiction can have a significant impact on the outcome of divorce proceedings as different countries apply different sets of rules, especially when it comes to the division of assets. It may be financially advantageous to a spouse to issue proceedings in one jurisdiction rather than another.  It is extremely important to seek legal advice about the different jurisdictional options at the very earliest stage as often the Court where proceedings are first issued will be the Court which ultimately decides the case.

There may be a limit in the Court’s power to enforce orders in relation to property or assets in another jurisdiction.

On divorce, there may be a limit to what a Court can do in relation to assets held in another jurisdiction. For example, if a couple own a holiday home abroad, there may be difficulties in enforcing a Court order dealing with this foreign asset.

There may be issues regarding where the children should live in the future.

After the breakdown of a relationship, one parent may wish to move back to their country of origin with their children.  However, if they do this without the consent of the other parent or permission from the Court, they could well be accused of abducting their child and proceedings could be brought for the return of the child to the place in which they had been living. Indeed, in some countries these actions could amount to a criminal offence.  It is crucial that legal advice is taken so that you are fully informed before deciding how to proceed. It is also important if your child has been taken without consent that you take steps as soon as possible if you wish for them to be returned.

Could a pre-nuptial or post-nuptial agreement help?

One way to try to avoid the uncertainty of what may happen should a relationship break down is to enter into an agreement while the relationship is working well. Whilst these agreements are regarded by some as unromantic, they are a practical way of agreeing what should happen if things don’t work out. Such an agreement could record what would happen to the assets following relationship breakdown.  It could also record the parties’ intentions about the children such as where they would live, their maintenance and education. The agreement could also settle which Court would have legal jurisdiction if there is a dispute.

Many countries recognise pre-nuptial and post-nuptial agreements or at the very least take its terms into account when ascertaining what the parties’ intentions had been. It is important to find out if the jurisdiction in which you will be living would do so.

If you would like further information on any legal aspect of divorce, please feel free to contact us confidentially here or leave your comments below

 

Same Sex Marriage & Civil Partnerships

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This week we are celebrating Belfast Pride Festival 2017, an event running from Friday 28th July 2017 to Sunday 6th August promoting and raising awareness of LGBT rights within our communities.

Following the historic outcome of the Republic of Ireland’s same-sex marriage referendum in May 2015, there have been continued cries throughout Northern Ireland for equality for same-sex partners on the same level in our own jurisdiction.

England, Scotland and Wales had their first same-sex weddings in 2014 after changes in the law allowed for marriage equality.   However, currently in Northern Ireland, whilst same-sex couples can enter a Civil Partnership, they are still not legally permitted to marry.

So, what are the rights of same-sex couples who enter into a Civil Partnership??

Under the Civil Partnership Act 2004, same-sex couples essentially have the same legal rights as couples who have entered into a civil marriage.

By entering into a civil partnership, same-sex couples acquire, amongst others, the following legal rights and responsibilities:-

  • The same rights to property as married couples -for example, they may by law have rights over their partner’s property even if they are not on the title deeds
  • They are considered their partner’s legal ‘next of kin’ – for example, if their partner is sick in hospital, they would be entitled to information about their medical treatment
  • The same rights of inheritance as married couples – for example, if their partner died without making a Will, they would be treated as next of kin and are able to inherit from their partner’s Estate.
  • Entitlement to the same inheritance tax exemptions as married couples – ie they can leave their assets upon death to their partner without being hit with inheritance tax.
  • The same recognition for immigration and nationality purposes
I have separated from my civil partner – what are my rights??

If civil partners separate, the Civil Partnership Act 2004 allows for property issues, maintenance matters and pension entitlement to all be dealt with in the same way as if the couple were a married couple going through a divorce.

When issues between civil partners can’t be resolved by agreement, the Court can adjudicate on how property and pensions should be divided out or how much maintenance should be paid by one partner to the other – much the same way as if the couple were married and divorcing.

Civil Partnerships & Same- Sex Marriage- what’s the difference??

As civil partnerships offer the same legal treatment to couples as marriage, some people may wonder why there is such a push for same-sex marriage to be legalised in Northern Ireland. Some may ask ‘If you have the same rights as a civil partner, then what’s all the fuss about?’  However, civil partnership is a legal relationship. Opposite sex couples can choose to be married by way of a religious or civil ceremony, whereas entering into a civil partnership is exclusively a civil process.

Many people find that to separate the two in this way is unfair – that whilst same sex couples have legal rights, these are not exactly the same as those given to opposite sex couples. And equal should mean equal, right?

It is an area of ongoing legal debate within Northern Ireland and one which we at Life Law NI will continue to follow closely…

We would like to take this opportunity to wish everyone a safe and happy Pride 2017!

If you would like any further information on the law surrounding civil partnerships and same sex marriage, please feel free to contact us confidentially here or leave your comments below.