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Divorce questions

Frequently Asked Questions – Divorce

| Published on May 23, 2016

In a series of ‘Frequently Asked Questions’, we will be tackling the common questions relating to divorce, cohabitation, prenuptial agreements and care of children. At Humphries Kirk we’re here for you with supportive and friendly advice should your marriage breakdown.

Can I get a divorce on the basis that I have simply fallen out of love with my husband but we remain friends?

A divorce can only be obtained on the ground of an irretrievable breakdown.  However to prove this you must either divorce your husband on the grounds of his adultery, his unreasonable behaviour, separation of 2 years to which your husband must consent to, separation of 5 years, or desertion.  Simply falling out of love with your husband is not a basis for a divorce, unless you have been separated for over 2 years and he consents to the divorce.  For further information please see – http://hklaw.eu/hk_news/options-if-a-marriage-break-up-occurs/

If we are sharing the mortgage of a property, how can I ensure that my spouse is able to ‘own’ or ‘buy out’ the remaining share so that she could remain in the property should we separate?

You cannot ensure this as ultimately it would be for the mortgage company to agree to your release from the mortgage, and that will depend on the mortgage company’s lending rules.  Your partner would have to apply for a new mortgage to cover the outstanding amount, and a further lump sum to “buy out” your share.  If this is not possible, you can agree that your partner will remain in the house, take over the payments for the mortgage and release you from the mortgage when they can.  But you would still remain on the mortgage until either the mortgage was repaid in full, or such other earlier date as you may agree to. It will therefore depend on whether your partner can afford to do this.  Any agreement about the financial settlement between the two of you will also need to cover all other assets and liabilities that you may have, for example savings, pensions etc.  The house is simply one factor in any settlement on a breakdown of a marriage.

If I have outstanding finance payments, who should these fall to if the marriage were to break up? If I am not married to my partner, whose responsibility would they be?

Whether you are or are not married, the legal responsibility for any outstanding finance payments remains the legal responsibility of the person in whose name they are in.  That person signed the finance agreement with the finance company, and they are the person who the finance company would seek to recover the money or goods from.On a financial settlement following a divorce, provision can be made for one spouse to pay maintenance to the other so that the outstanding finance payments can continue to be made by the other spouse if appropriate.  This is not the case if you were cohabiting.

Should we decide to divorce, do we have to use the same solicitor or can we choose different ones?

Current Law Society rules means that if you are divorcing, neither you nor your spouse can use the same solicitor or firm of solicitors.  You must each have different solicitors from different firms.

How soon after the wedding can we get divorced?

To be able to obtain a divorce, you must have been married at least 1 year.  Therefore you cannot issue divorce proceedings at court until 1 year has elapsed.  A divorce usually then takes between 6-9 months. For further information please see: http://hklaw.eu/hk_news/get-a-quick-divorce/

 

Disclaimer: These answers do not constitute legal advice, and should not be relied upon. The answers are intended to be useful but do not replace legal advice tailored to your individual circumstances.

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