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.
1. Protecting your and your children from violence
Violent behaviour or mental torment during a divorce is unfortunately not unusual. What can you do if your spouse becomes violent or threatening? It is important to see a solicitor immediately as he or she can, if necessary, obtain an injunction (called an 'interdict' in Scotland) from a judge within a matter of hours.
If your spouse breaches the injunction and continues to be violent, the judge can hold your spouse in contempt of court, and he or she may be liable to imprisonment. In addition, you can also obtain what is 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
You can also obtain what is 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
When going through a divorce, it is not uncommon for one or both spouses to conceal or hide their assets so that they cannot be considered by the court. If you know that your spouse owns assets which you believe he or she is attempting to transfer, conceal or put in trust, you may want the court to freeze them. To assist the 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.It is important to see a solicitor as soon as you suspect this is happening since in certain circumstances it may be important for them to make an application to the court as a matter of urgency.
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, if the property is registered land, you need to register a Notice in form MH1 in the Charges Register of the property to prevent your spouse from selling or mortgaging it. If the property is unregistered land, you must register a class F Land Charge at the Central Land Charges Registry in Plymouth. To discover whether the property is registered or not, 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, he or she still needs to obtain written consent from you before he or she can sell the property. If your spouse has other property in his or her 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 his or her name. You will need the assistance of a 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? You may consider using the 'Trusts of Land and Appointment of Trustees Act' (which doesn't apply in Scotland). This allows the court to order the property to be sold, but the proceedings are often drawn out and complicated in themselves and should not be considered without the advice of a solicitor.
Changing the locks. You are not entitled to change the locks even for your own protection, unless you have first obtained an occupation order (called an 'exclusion order' in Scotland).
4. Protecting your income and financial security
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 (usually the husband) discontinues support, the other spouse (usually the wife) can apply to the court for all forms of financial relief once the petition for divorce 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).An application to the Child Support Agency may also be necessary.
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.
Law stated as at 1 February 2006.