DIVORCE & SEPARATION

These notes are intended to give you a very general idea of what is involved in obtaining a divorce.

GROUNDS FOR DIVORCE

There is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as ‘the Petitioner’ and their spouse is called ‘the Respondent’. Proceedings for a divorce cannot be started until the parties have been married for at least one year.

To satisfy the court that there has been an irretrievable breakdown the Petitioner must prove one of the following five facts:

  1. The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
  2. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. This fact is commonly known as “unreasonable behaviour”.
  3. The Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.
  4. You have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted.
  5. You have lived apart for a continuous period of at least five years immediately before the start of the divorce.

Most divorces are based on facts (a) ‘adultery’ or (b) ‘behaviour’. ‘Adultery’ is an act of sexual intercourse with a person of the opposite sex. To be able to rely on this in the divorce the adultery must have happened in the six months before separation. It is not good practice to name the person with whom the adultery took place or to involve them in the court proceedings and indeed it may delay or complicate the divorce proceedings if a “Co-Respondent” is named.

The test for ‘behaviour’ is subjective, it does not need to consist of extensive violence, drug or alcohol addiction or other extreme behaviour. A combination of less obvious behaviour can be sufficient. Often issues like working too much (or not working enough), showing too much (or too little) affection, combined with a number of other similar factors are used.

SEPARATION

If you would prefer to regularise your separation without actually divorcing there are two options available:-

  1. Judicial separation;
  2. Separation agreement

JUDICIAL SEPARATION

This involves a court procedure which is virtually identical to that which applies to a divorce. The essential difference is that the court pronounces a decree of judicial separation rather than a divorce and therefore you and your spouse would remain married. The main reason people choose judicial separation over divorce is for religious reasons or if valuable pension benefits are lost on divorce. However, since the court can now share pensions, the latter is no longer so important. In the event that you proceed with a judicial separation please be aware that a Pension Sharing Order cannot be made.

SEPARATION AGREEMENT

Many couples prefer to reach an agreement about financial matters arising out of their separation without involving the court at all. The way this can be achieved is for them to sign a written document which incorporates the agreement they have reached. Commonly, such agreements deal with confirmation that the parties to the marriage are to live apart and the manner in which any maintenance and property issues are to be dealt with. Whilst there are no restrictions on what can or cannot be included in such an agreement, it is important to bear in mind that if either person makes a subsequent financial application to the court, the court is not bound by the financial arrangements in the separation agreement.

DIVORCE PETITION

Divorce proceedings are started by the Petitioner issuing a Petition which sets out basic details of the marriage. The Petition also sets out the facts on which the Petitioner is relying to establish that the marriage has broken down irretrievably. The Petition will include a request for the marriage to be dissolved and can also include requests for all of the financial claims which are available (e.g. maintenance etc.). If the Petition includes a request for financial claim(s), it does not necessarily mean that these claims will be pursued by the Petitioner.

FILING THE PETITION

Once the Petition has been approved and signed by the Petitioner, it is sent to the Court (together with other documents required) and the Court fee. Once the Court office staff have processed the Petition, it will be sent to the Respondent, together with an Acknowledgement of Service form.

ACKNOWLEDGEMENT OF SERVICE

The Respondent should complete the Acknowledgement of Service form indicating whether he/she wants to defend the divorce and return it to the Court within 8 days. However, a short delay is not going to make a significant difference and often if there are any issues, both sides agree to an extension of time. Nevertheless, the quicker this can be done, the better as unfortunately there are often long delays whilst the court process your papers.

If the Respondent does not return the form, it may eventually be necessary to arrange for another set of the documents to be served on him/her, unless it can be proved in some other way that he/she has received the Petition and accompanying documents from the Court. This may, for example, be done by a process server giving it to him/her personally.

DECREE NISI

Once the Court receives the completed Acknowledgement of Service form it will stamp it and send a copy to the Petitioner. The Petitioner can then apply for the conditional divorce order, the Decree Nisi. This is the point at which the District Judge looks at the Petition and decides whether the Petitioner is entitled to a divorce. In the vast majority of cases the Court simply approves the Petition.

If the District Judge approves the Petition, a date will then be set for the formal pronouncement of the Decree Nisi. This is unlikely to be less than two months from the date when the application for the Decree Nisi was sent to the Court and depends mainly on the timetable at Court. Neither party has to go to Court for that hearing unless there is a disagreement about payment of costs, see below. Usually the Judge simply announces formally in open Court that all decree nisi on the Court list are pronounced without anyone attending Court. This is only the first divorce order and the parties remain married until the final order is made.

If the Petitioner has made a claim for costs, the Judge will also consider this. If the Petition is based on the Respondent’s adultery or behaviour, then it is likely that the Respondent will be ordered to pay the Petitioner’s costs. If the Petition is based on two or five years’ separation, the Court would generally be less inclined to order that the Respondent should pay the Petitioner’s costs.

A short Court hearing will take place for the District Judge to determine whether a Costs Order should be made if the parties are in disagreement about this.

DECREE ABSOLUTE

The divorce is not final until the Decree Nisi is made absolute. The Petitioner can apply for the final order, the Decree Absolute, six weeks and one day after the date of the pronouncement of the Decree Nisi. The Court should process the application within a fortnight or so, but it can often take longer. The application for the Decree Absolute is processed by the Court staff without a hearing.

If the Petitioner fails to apply for the Decree Absolute within 3 months of the six week date (i.e. roughly four and a half months from the date of the Decree Nisi), the Respondent can apply for the Decree Nisi to be made absolute. However, if the Respondent does make the application, he/she will not be granted the Decree Absolute automatically. A short hearing will be fixed before a District Judge who will consider whether it is reasonable for the divorce to be finalised.

TIME ESTIMATE

In all, a divorce will generally take approximately nine months from start to finish, but can take longer. The timing will depend on whether either party delays in taking particular steps during the proceedings or unfortunately as it is at present because there are long delays with the Court.

TESTIMONIALS

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