|An excerpt from Lawpack's Separation & DIY Divorce Kit.|
Not all divorces are amicable. If your spouse acts unreasonably during the divorce, then you may need the powers of the court to protect you. Here's a checklist of sources of support available to you during your divorce.
1. Protecting you and your children from violence during a divorce
Violent behavior or mental torment during a divorce isn't unusual. What can you do if your spouse becomes violent or threatening? It's important to see a solicitor immediately as they can, if necessary, obtain an injunction (called an 'interdict' in Scotland) from a judge within hours.If your spouse breaches the injunction and continues to be violent, the judge can hold your spouse in contempt of court, and they may be liable to imprisonment. In addition, you can also obtain what's known as an occupation order (in Scotland called an 'exclusion order') preventing your spouse from entering the matrimonial home. There has to be up-to-date evidence of physical violence or some other serious form of harassment for such on order to be granted.
2. Protecting you and your children from harassment during a divorce
You can also obtain what's known as a non-molestation injunction (called a 'non-harassment order' in Scotland) if your spouse persists in harassing you, telephoning you or visiting the property where you are living. This order prevents your spouse from harassing, assaulting or intimidating you and your children. The penalty for breaching a non-molestation injunction can be imprisonment.
3. Protecting your property during a divorce
When going through a divorce, it's not uncommon for one or both spouses to conceal or hide their assets so that they cannot be considered by the divorce court. If you know that your spouse owns assets which you believe they are attempting to transfer, conceal or put in trust, you may want the divorce court to freeze them. To assist the divorce court, gather as much information as possible concerning the asset, including its location. For example, it would help to have details of your spouse's bank account.
What can you do to protect your interest in a matrimonial home which is owned in the sole name of your spouse?
In England and Wales, you can prevent your spouse from selling or mortgaging the property by registering a Notice in the Charges Register against the property by completing Form HR1 - Application for registration of a notice of matrimonial home rights, if your property is registered land. If your property is unregistered land, you must register a Class F Land Charge at the Central Land Charges Registry in Plymouth; contact them on 0844 892 1111 for details. To find out whether the property is registered, contact the Land Registry who will explain the procedure; a small fee is payable.
In Scotland, even if the matrimonial home is in the sole name of your spouse, before they can sell the property they still need to obtain written consent from you if you are the non resident spouse and still have occupancy rights. Occupancy rights are lost if you haven't been living in the matrimonial home for two years.
If your spouse has other property in their sole name other than the matrimonial home, once divorce proceedings have been raised, an 'inhibition' can be obtained to prevent your spouse from selling any property in their name. You will need the assistance of a divorce solicitor to obtain an inhibition, which is a court order preventing the sale of the property.
What can you do if your spouse refuses to sell or leave the matrimonial home or consent to a divorce?
A piece of legislation called the 'Trusts of Land and Appointment of Trustees Act' (which doesn't apply in Scotland) allows the divorce court to order the property to be sold, but such proceedings are often drawn out and complicated in themselves and shouldn't be considered without the advice of a divorce solicitor.
Changing the locks. You're not entitled to change the locks even for your own protection, unless you have first obtained an ouster injunction (called an 'exclusion order' in Scotland).
4. Protecting your income and financial security during a divorce
If your spouse continues to pay the mortgage or rent and provides for the family's needs as before, then no court action is necessary. But if the supporting spouse discontinues support, the other spouse can apply to the court for all forms of financial relief once the divorce petition has been lodged; before that, you can apply for maintenance only but this application has to be brought in a family proceedings court (part of the Magistrates' Court). The court seeks to maintain the financial stability of both spouses. It therefore usually orders the husband to pay temporary income to his wife (maintenance pending suit, or 'interim aliment' in Scotland) until long-term arrangements have been resolved.
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Published on: October 25, 2010