Divorce

 

 

1. Court proceedings can be issued for Judicial Separation as soon as the parties separate.

 

Incorrect.  Court proceedings cannot be issued until at least 12 months has expired after the parties separate.

 

2. Divorce Proceedings can be issued as soon as the parties separate or agree to a Divorce.

 

Incorrect.  Divorce proceedings can only be issued after the expiration of four years from the date of separation.

 

3. A wife will always be granted custody of the children.

 

Incorrect.  The court will decide what is in the best interests of the children.  Whilst it is quite common for the mother to get a greater share of the custody, it has become more common that fathers get joint custody with equal access.

 

4. A party seeking a divorce / separation needs to prove fault on the part of the other.

 

Incorrect.  It is not necessary to prove fault to obtain a Judicial Separation or Divorce.

 

5. The wife will always receive 50% of the assets in the event of a Judicial Separation or Divorce.

 

It is the courts duty to make sure that proper provision is made for both parties.  Consequently, there is no legal entitlement for  either party to have a fixed share of the joint assets in the event of a separation / divorce.

 

6. The court cannot divide up the pension of separated / divorced party.

 

Incorrect.  The court will make such orders as are necessary to make proper provision for the parties.  This also includes the apportionment of pension entitlements if necessary.

 

7. A lending institution must accept the court order with regard to the division of property, including transfer of mortgages.

 

Incorrect.  The court order cannot affect the contract that exists between a bank and its customer i.e. the mortgage.  Consequently if there is a joint mortgage held by both spouses, the court cannot direct the bank to transfer the mortgage into on spouses’ name.

 

8. A husband/wife who leaves the family home cannot return until the separation / divorce proceedings have been determined.

 

Incorrect.  A spouse / civil partner is always entitled to return to the family home at any stage unless there is a court order preventing him/her from returning to the family home.

 

9. A spouse is entitled to a share of their deceased partner’s estate even if separated / divorced.

 

Incorrect.  It is normal for a separation agreement and/or a court order for separation or divorce to contain a provision waiving Succession Act rights as between the parties.  For the surviving spouse to be disentitled to any share of the deceased’s estate the agrrement/court order must clearly state so.

 

10. (none)