Dear Mrs Macaulay,
I need to start filing for a divorce and I need to know the procedure. I contacted a lawyer who told me the documents I need to take in and the cost. I have been married for over 10 years. I have three kids.
We are still living at the house, but we are living separate lives. The house is in both our names. What will I get for myself and the kids? Will my husband be responsible for looking after the children including my eldest child who will be 18 in two years? Can we both still live at the house during the divorce procedure? How will the law treat the house as both names are on the title and I don't want to move? How long will the procedure take?
I am sorry to learn of the breakdown of your marriage. Divorce is very traumatic and stressful. There are so many things to do to meet the changes which such a breakdown makes necessary for your lives.
You ask what are the procedures for divorce and then specific questions about provision for the children in relation to the family property. I am treating your question about the procedure for divorce as not being a request for what must be filed in court and what should be in it, as you have a lawyer who will see to that for you.
I will just say that you and your husband must be separated and have lived separate and apart for 12 full months before you can file for divorce.
Your marriage must also have broken down irretrievably.
First then, let me say that you can apply for and sort out the questions relating to the custody, care and control, access and the maintenance provisions for the children before you file for divorce. You can also file for a partition and sale of the family property with those applications relating to the children, which I have just mentioned.
You see, you need not file for divorce before you file for these things. As you say that your eldest child will be 18 years old in two years, I would advise you to apply NOW for the custody, care and control of the children with access to the father. You should also, in the same Fixed Date Claim Form, also apply for him to contribute to the maintenance of the children. In relation to the eldest, you must claim for maintenance for him for the years beyond 18, specifying that he would be engaged in continuing his studies or training in some skill at a particular institution.
And, I would suggest that the same is pleaded and ordered in respect of your other children. This will save you having to apply to continue the maintenance orders in relation to each of the younger ones before they reach 18 years of age.
I think you should also apply that the maintenance provisions ordered for him to pay for the children be increased by a certain percentage on each annual anniversary of the date of the order. This, and the asking for the younger children's orders to continue beyond their 18th birthdays, will save the court a lot of time as it will then not have to deal with individual future applications and annual ones for increases, and save you a lot of trouble and expenses. For these types of matters you will have to pay your lawyer and he will have to pay his. It is only on rare occasions that the court will order a husband or wife to pay the costs of the other for matrimonial proceedings. So do as much in one proceeding as you can. The rules permit this to be done.
Your applications must, of course, be supported by an affidavit containing all the relevant facts on which you rely and which support the claims you have made for the orders you seek.
This is why I also said that you can apply for a partition and sale of the home in the same application as that relating to the children's custody, care and control, access and maintenance. All these can be done together in the same application. Then you can later file for your divorce, which from what I glean from your letter, will not be defended (answered) by your husband. It can go through simply on paper without you having to appear and give evidence in court.
Or you can apply for your divorce and in your petition you make the claims I have suggested about your children and that about the home, also. This will mean you must provide all the information upon which the judge may act to make all the orders you seek, and after your husband has been served and given an opportunity to defend any or all of your claims.
I personally prefer that you go for the first procedure I mentioned. Go for the orders for the children and the property settlement orders, and then after these have been completed or they are well on the way, then you file for the divorce.
You see there are delays in the court, in the hearing and completion of matters because of the large volume of cases and for other reasons which I need not go into here. You have to move quickly about the maintenance of the children, especially if he is not providing for them adequately now and remember that the application should be filed before your eldest becomes 18.
So I hope this assists you. Good luck to your and your children.
Margarette May Macaulay is an attorney-at-law and a women's and children's rights advocate. Send questions and comments via e-mail to firstname.lastname@example.org. See responses to your questions in All Woman. We regret we cannot provide personal responses.