1. Grounds for a Divorce
The Court requires that parties prove that their marriage has irretrievably broken down. This is the only ground upon which a divorce can be obtained at the present time. The Court will, however, only grant a divorce if you can establish one of five facts laid down by law for proving irretrievable breakdown.
2. The Five Facts
These are as follows:
a. Your husband or wife has committed adultery, and you find it intolerable to continue living with him or her;
b. Your husband or wife’s behaviour has been such that it would be unreasonable to expect you to continue living with him or her;
c. Your husband or wife deserted you at least two years ago;
d. You and your husband or wife have lived apart for at least two years and your husband or wife consent to that divorce;
e. You and your husband or wife have lived apart for at least five years (and this does not require the consent of your husband or wife) for the Petition to be issued.
3. Beginning the Proceedings
It is important that before you start divorce proceedings that you have been married for more than one year. You or your husband or wife must have been resident or domiciled in England or Wales during the preceding year. It will not make a difference if your marriage ceremony took place abroad or in this Country.
4. The Petition
The Petition takes a basic format providing information for the Court. This will include the date and venue of the marriage, the parties’ names, addresses, occupations; the Court needs to know about all relevant children including their ages. The Petition must include a statement that the marriage has broken down irretrievably and then refer to one of the five facts noted above, together with supporting information.
The Petition contains a section known as a “prayer” which includes the request that the marriage be ended. It may also include a request for an order for a Financial Order (which can deal with such things as property, maintenance, pensions and other financial matters relating to the marriage). This section may also include a claim for the costs of the divorce to be paid by your husband or wife should you so choose (and if you are the Petitioner).
5. Arrangements for Children
If there are relevant children, the Court requires you to provide certain information which outlines the basic details of relevant children (this is used to be dealt with by way of a separate document known as a “Statement of Arrangements for Children”).
If you are unable to agree arrangements for the children, you may need to make an application to the Court under the Children Act 1989 but you may want to consider the option of Mediation prior to doing so.
If you are unable to agree arrangements in respect of the children, this does not prevent the divorce from going ahead.
6. Financial Matters
Once a divorce has begun, it is generally advisable to deal with the division of the matrimonial property and assets. It is not essential for this issue to be completed by the time the divorce reaches it final stage and very often, because of the nature of finances and assets being more complicated, and if it proves to be difficult to reach an agreement with your husband or wife, this aspect may take much longer to complete than the divorce itself and can therefore run in parallel to the divorce proceedings.
a. Either the husband or wife may begin divorce proceedings. He or she is then referred to as the Petitioner. The Petition is sent to the Court, together with the original Marriage Certificate (which the Court will retain). The Court will also require a fee for issue which is presently £410.00.
b. The Court then sends a copy of the Petition to the husband or wife who will then be known as the Respondent. A copy of the Petition must also be served upon any other individual named in the Petition. For example, on the fact of adultery, if a third party is named they will be known as the Co-Respondent.
c. The Court will also send a form called an Acknowledgement of Service which asks the Respondent various questions, the key ones being:-
(i) if he or she intends to defend the Petition;
(ii) if he or she agrees to the proposed arrangements for children; and
(iii) if he or she disputes the Petitioner’s claim for costs (subject to them being claimed).
d. When the Respondent receives the documents he or she must return the Acknowledgement of Service to the Court within eight days. In the rare event that the Respondent chooses to defend the Petition he or she must file a defence or an “Answer”. If the Respondent adopts this course, then the following procedure does not arise and it will take considerably longer for the divorce to be completed.
If the Respondent does not return his or her Acknowledgement of Service to the Court, there are other means by which the Petitioner can satisfy the Court that the Respondent has received the Petition. Assuming that the Acknowledgement of Service is returned, the Court will then send a sealed (Court stamped) copy to the Petitioner or to his or her solicitor.
e. If the Respondent has confirmed that he or she will not defend the Petition, then the Petitioner can progress to the next stage of the divorce process which will be his or her application for Decree Nisi. The Petitioner must sign a Statement which confirms the contents of the Petition are true, and deals with any changes in circumstances. The Petitioner must complete and answer various questions relevant to what might have occurred since the Petition was first filed. The Statement must be signed and is then sent to the Court with a request that the date for pronouncement of Decree Nisi be fixed under what is known as the special procedure.
f. If the papers sent to the Court are all in order, then the District Judge will issue a document known as a Certificate of Entitlement to a Decree of Divorce in the Petitioner’s favour. The Court will notify both the Petitioner and the Respondent of the date fixed for pronouncement of Decree Nisi which is likely to be several weeks after that application has been made.
g. If there are children in the case, the Court will also send a second document known as a Section 41 Certificate where the Court will show that they have considered any needs of the children under the Matrimonial Causes Act 1973 or the Children Act 1989. If the District Judge indicates that he or she is not satisfied by the arrangements proposed in the Statement then he or she can require both parents (with their solicitors) to attend an informal appointment at the Court which is designed to assist in solving those difficulties. A CAFCASS Officer can assist in this respect if a solution cannot be found, this will delay pronouncement of the final Decree of Divorce.
h. If arrangements regarding point vii above are approved by the Court, the Petitioner may apply for the final Decree (referred to as Decree Absolute) by sending the appropriate application to the Court. He or she may do so six weeks and one day after the date upon which the Decree Nisi was pronounced. The Court will generally process this application quickly and the Decree Absolute should usually be available within a few days.
i. If the Petitioner does not make this application, the Respondent may apply for Decree Absolute three months after the date upon which the Petitioner could have first applied. An application made by the Respondent is likely to be listed and may not be granted, if, for example, the financial issues have not been resolved.
In addition to the above noted Court fees, please contact Paul Wild at this office for an indication as to the likely costs associated with the divorce proceedings and other aspects associated with the divorce including the resolution of financial issues. He can be contacted on 0118 958 9711 or by email to [email protected].