People usually have many questions about divorce
and the following information will provide some of the answers.
The information is divided into the following sections:
- Divorce proceedings
- The stages
of a divorce and the length of time of proceedings
- The financial
implications of a divorce
- When children
are involved
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1. Divorce Proceedings
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Who can start divorce proceedings?
Anyone who has been married for over a year provided the relevant
criteria on residency & domicile is met. During your first
meeting, a solicitor will check that you are eligible to commence
proceedings. |
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On what grounds can a divorce petition
be started?
A divorce will be granted if the marriage has irretrievably
broken down, and one of the following five reasons is established:
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(a) Your spouse has committed adultery
and you find it intolerable to continue living together.
(b) Your spouse has behaved in such a way
that it would be unreasonable to expect you to continue
living together.
(c) Your spouse has deserted you for a
continuous period of 2 years or more.
(d) You and your spouse have been living
separately for 2 years or more, and your spouse agrees to
the divorce.
(e) You and your spouse have been living
separately for 5 years or more, whether or not your spouse
consents to the divorce.
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If your marriage
has irretrievably broken down, and one of the five reasons applies,
what happens next?
You should seek the advice of a solicitor who will explain more
about divorce. If you decide to start divorce proceedings, your
solicitor will explain that the first stage is to issue a divorce
petition. It is often sensible to try to obtain your spouses
consent to the petition and to try to reach agreement over the
contents of the petition. |
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What information is included in
the divorce petition?
The divorce petition contains basic information about names,
addresses, ages of children and a statement that the marriage
has irretrievably broken down. It will also state the reason
for the divorce.
The petition will contain a section that will include a request
for the divorce to be granted. It may also include a request
for an order relating to any children; a claim regarding the
costs of the divorce; and an order for financial provision. |
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Will information on my divorce be
made public?
Court proceedings concerning divorce are usually private, which
means the public and press are not allowed access to the Court
papers. However, the press are able to publish that a divorce
has been pronounced. The information they may disclose is very
limited, so whilst they may state the reason for the divorce
they are not able to publish details of the adultery or unreasonable
behaviour. |
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2. Stages of a divorce & length
of time of proceedings
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People often ask how long a divorce will
take but this is a very difficult question to answer as so much
depends on the circumstances of the individuals involved.
There are however some stages of a divorce which do have strict
timetables: |
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Stage 1 - See
a solicitor and start divorce proceedings
After one year of marriage either spouse may start the divorce
provided that one of the five reasons apply. The person who
starts the divorce is called ‘the Petitioner’ and
the other party to the divorce is called ‘the Respondent’.
The divorce petition and statement of arrangements about any
children are completed and sent to court with the marriage certificate
and the requisite Court fee of £300 or an application
for exemption from the usual court fee. |
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Stage 2 - Court receives petition
Within one to two weeks, the court will send a copy of the petition
and arrangements for the children to the Respondent. A copy
of the petition is also sent to anyone named in the adultery
petition. |
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Stage 3 - Response of Respondent
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a) Within 14 Days
– the Respondent should send to Court a form called
‘Acknowledgement of Service’. The form asks
the Respondent whether they intend to defend the petition,
whether any claim for costs is
disputed and whether orders affecting any children are sought.
b) Within 28 of receipt (longer
if the documents have been sent abroad) –
whether or not the Respondent has returned the ‘Acknowledgement
of Service’, the Respondent must, if they intend to
defend the petition, file a ‘Defence’ (called
an Answer). The petition then becomes defended and the procedure
outlined below does not apply. Defended divorce proceedings
resulting in a fully contested hearing are very rare, but
will inevitably cause a delay in proceedings.
c) If the Respondent does not return
the ‘Acknowledgement of Service’ –
then proof that the Respondent and any named Co-Respondent
have received the petition will have to be obtained before
any further steps are taken. This may involve arranging
for someone to deliver the petition to the Respondent and
Co-Respondent personally, or more rarely by obtaining a
Court order that proof that the Respondent and Co-Respondent
received the petition is not needed. In some cases, namely
a divorce based upon two years separation, no further progress
can be made unless and until the Respondent returns the
acknowledgement form consenting to the divorce. Personal
service of the petition would not therefore assist in this
type of case.
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Stage 4 - Court receives ‘Acknowledgement
of Service’
The Court will send a copy of the form(s) of ‘Acknowledgement
Service’ to the Petitioner’s solicitor. |
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Stage 5 - If the
Respondent is not defending the petition, the Petitioner can
apply for a certificate of Entitlement to a decree
The Petitioner’s solicitor prepares an Affidavit for the
Petitioner to swear confirming that the contents of the petition
are true. It will also state whether the circumstances (including
those relating to any children) have changed since the filing
of the petition. The Petitioner will swear the Affidavit before
a solicitor or Court Official and it will then be sent to the
Court with a request for a date for the first decree of divorce
(Decree Nisi) to be pronounced. |
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Stage 6. Court receives Decree Nisi
The District Judge looks through the papers and, if they seem
in order, will give a certificate for the Decree Nisi to be
pronounced. Both the Petitioner and Respondent (through their
solicitors) are then advised of the date fixed for the Decree
Nisi. Depending on the Court’s diary, the date is likely
to be a few weeks after the application is lodged. The couple
will not have to attend court. |
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Stage 7 - Arrangements for children
If both parties have made an agreement regarding their children
then the District Judge is unlikely to interfere. If an agreement
concerning the children has not been reached, then the District
Judge may ask the Petitioner and Respondent (accompanied by
their solicitors if necessary or appropriate) to attend an informal
appointment to discuss a solution. The District Judge may also
ask for a Court Welfare Officer to become involved. If a solution
cannot be reached, this will delay the application for the final
decree of the divorce.
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| Stage 8 - Decree Absolute |
a)
6 weeks and 1 day after the date of the Decree Nisi the
Petitioner may apply for the final decree (Decree Absolute)
by sending the appropriate form to the Court. This step
is not automatic. This Decree will be processed and may
even be available on the same day. There is usually a Court
fee of £40 to be paid upon applying for decree absolute
although we will advise you as to whether you may be exempt
from paying the fee.
b) If more than 3 months after the Petitioner
could first have applied for Decree Absolute has passed,
the Respondent may apply for the Decree Absolute if the
Petitioner has not already done so.
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3. The Financial
Implications of Divorce
Probably one of the biggest concerns when you are considering
separating or divorce are the financial implications. This can
be a major point of discussion during the divorce itself, and
it is important to keep discussions over finances separate from
those regarding the arrangements of your children.
The sorting out of the financial matters, if dealt with by the
Court, is called ‘ancillary proceedings’. The law
relating to this area is quite flexible, and allows the Courts
to look at each individual case and decide accordingly on the
financial settlement.
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Do I need to appoint a solicitor?
You will generally need to instruct a solicitor to act on your
behalf but if matters can be settled without the need to go
to Court, it will generally be better for the parties involved,
and certainly less expensive. Your solicitor will negotiate
the situation on your behalf with your partner’s solicitor
and keep you regularly updated.
Even if you have come to an informal agreement with your spouse,
we strongly recommend you ask a solicitor to check the agreement.
You could be putting yourself in a vulnerable position, and
remember that both your circumstances could change in the future.
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If it goes to Court, what factors do they take into
account?
If the financial matters do reach Court, the District Judge
will take into account the relevant factors:
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- the welfare of any children of the family
who are under 18 years old
- the income, earning capacity, property and
resources of each person
- the financial needs, obligations and responsibilities
of each person
- the standard of living enjoyed by the family
before the breakdown of the marriage.
the age of each person, and the duration of the marriage
- any physical or mental disability
- the contribution made by each person to
the welfare of the family, including looking after the home
and bringing up children
- the conduct of each person, but only if
it was so bad it would be unfair to ignore it
- any serious disadvantage to either person
that would be caused by ending the marriage
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Do I have to tell my partner about
all my assets?
It is important to realise that the starting point in settling
the finances, is a full and frank disclosure of all of your
assets and liabilities, incomings and outgoings. If something
is not declared, but discovered later, it will not help your
case and could well amount to conduct which the Judge would
wish to take into account. |
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Are financial issues dealt with before
the divorce is finalised?
It is not necessary for financial discussions to be completed
by the time the divorce is final. Often you will still be in
the early discussion stages if the financial issues are complicated.
However, it should at least be possible to resolve any immediate
problems and make temporary maintenance arrangements. |
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What happens to the house?
Usually the house is a family’s main asset, and in line
with the need to consider the welfare of any children, the Court
would consider it important to ensure that they have a suitable
home. The issue of the house could be settled in a number of
ways. It could be sold, and the proceedings divided between
the parties, or one party could keep the house and pay a sum
of money to the other. On rare occasions, one party stays in
the house, with the other maintaining an interest in it that
is given to them when the house is sold.
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What is maintenance?
Maintenance is the term used when a settlement includes some
form of regular payment from one party to another. This is often
for the upkeep of a child. This is called Child Maintenance
and can be either for a fixed term (for example until the child
is 18), or ongoing and reviewed on a regular basis. If it is
for the benefit of the wife, it is called Spouse Maintenance. |
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What about pensions?
There are a number of different types of pensions and a valuation
of the pension fund would need to be obtained. Pension funds
can simply be offset against other assets.
Also there are different types of orders which can be made in
respect of pensions. A percentage of your spouse's pension may
be earmarked such that, when the pension becomes payable, you
will receive regular payments. However there are a number of
disadvantages to such an order.
A second option is a Pension Sharing Order and this provides
for a share of the pension to be transferred so that each spouse
has a separate and distinct fund. The main advantage of such
an order is that it provides for a clean break between spouses.
We would seek to negotiate an agreement with your spouse which
could be approved by the Court or, if no agreement can be reached,
can assist in pursuing an application to the Court. |
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| 4. When Children are involved |
One of the most important things to consider
when a couple separate or divorce is the effect it will have
on their children. Rather than talking about the rights of parents,
the law talks about the ‘parental responsibility’
for a child.
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So how are things decided?
Regarding making the arrangements for children it is important
to be willing to negotiate and come to an agreement rather than
argue at length. If both parties agree a proposal, it is more
likely to work than if one party is not happy.
It is best if you and your partner can come to some private
arrangement regarding your children. This means the Courts do
not become involved and your children are protected from unnecessary
upset. If you and your partner have come to some agreement,
you will need to tell your solicitor about it so that it can
be formalised if this is what you wish.
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What if we cannot reach an agreement about our children
ourselves?
If you cannot reach a private agreement yourselves, the first
step is to speak to your solicitor. They may be able to suggest
alternatives and to speak with your ex-partner’s solicitor
and come to some agreement, again without involving the Courts
directly.
If this proves impossible, the Court will become involved and
will make the decision based on the evidence it receives. The
Court will need details of the children such as their ages,
their wishes and feelings, the ability of the parents to meet
their needs and any other information it considers relevant.
The Court may ask for a Children and Family Advisor to prepare
a report looking at all of these aspects. A Court and Family
Reporter is an expert who deals with these cases on a day to
day basis. This is likely to involve a visit to where the children
are living and, potentially a visit to the other parents home
address (with or without the children being present) and asking
them questions on how they feel.
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What will the Court decide?
The Court is under a duty not to make an order unless it is
necessary to do so.
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What happens to the children if we
are not married?
For unmarried parents the mother will automatically gain parental
responsibility. The father will have to either enter into an
agreement with the mother or apply to the Court to gain parental
responsibility. The law in this respect has however changed
and in future, if the father is named upon the child’s
birth certificate he will also automatically gain parental responsibility.
There are a number of instances where the agreement of all those
with parental responsibility is required, for example to change
the name of a child or to take them out of the country.
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