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Divorce and Separation

The mechanics of obtaining a divorce nowadays are usually quite straightforward particularly if the couple agree that the marriage is over. The difficulties tend to lie rather in resolving the related practical issues such as how to separate, where to live, arrangements for the children and any financial and property matters.

Your attention will probably be concentrated on those related issues and the process of actually obtaining the divorce may seem blurred. The purpose of this letter is to outline a broad framework of the divorce process, to highlight key points and to set out the sort of timetable to expect.


1. Who can start divorce proceedings?

Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. Domicile is the county you consider to be your permanent home. It does not matter where the couple were married.

2. On what grounds can a divorce petition be started?

The only ground for divorce is that the marriage has irretrievably broken down, but there is a complication. That can only be proved if one of the 5 facts laid down by law, is established.

3. What are the ‘facts’?

(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.


4 If the marriage has ‘irretrievably broken down’ i.e. one of the 5 facts applies, what happens next?
 

This will depend upon your particular circumstances. It is often sensible to try to obtain your spouse’s consent to the petition and to try to reach agreement over the contents of the petition. For example, if your spouse accepts that the petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour may need to be given.

5.
What does the petition actually look like?
 

Every petition follows the same form. It contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down. It will also state the ‘fact’ on which it is intended to rely.

The petition will include a section (known as a ‘prayer’), which will include a request for the divorce to be granted. It may also include a request for an order relating to children; a claim regarding costs of the divorce; and an order for financial provision.


6.
What about the children?

A form is sent to the Court with the divorce petition, which will outline the arrangements relating to the children. The law encourages couples to try and agree those arrangements. The form (known as a ‘Statement of Arrangements’) is usually completed by the person filing the petition. Preferably it should be sent to the other spouse before it is filed. If agreement is not reached, this does not prevent the divorce from proceeding.

7.
Are financial issues dealt with before Decree Absolute is pronounced?

It is not necessary for financial discussions to be completed by the time the divorce is final. Frequently they will still be in the early stages if finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements. It is however important to include a potential/intended financial claim in the relevant section of the divorce petition called the prayer. 

TIMETABLE

Either spouse may start the divorce. He or she is referred to as the ‘Petitioner’. The Petition and Statement of Arrangements about the children are completed and then sent to the Court together with the marriage certificate. A fee, currently £340.00 is payable unless the Petitioner is being advised under the Legal Help Scheme.

Within a few days of sending the petition to the Court, the Court sends a copy of the Petition and Statement of Arrangements to the other spouse, referred to as the ‘Respondent’. A copy of the petition is also sent to anyone named in the adultery petition. That person may be referred to as the ‘Co-Respondent’. If the Respondent (or Co-Respondent) has instructed solicitors, the petition may be sent to them (although it is nowadays unusual for a co-respondent to be named in a divorce petition)

From the date the documents are received the Respondent has strict time limits to observe:

(a) Within 8 days He or she should send to the Court a form called an ‘acknowledgement of service’ which accompanied the petition. The form asks the Respondent whether it is intended to defend the petition, whether any claim for costs is disputed and whether orders affecting the children are sought. It is however usual to allow up to 14 days for filing the acknowledge so that the Respondent can seek legal advice if required.

(b) Within 29 days of receipt (longer if the documents have to be sent to an address abroad). Whether or not an acknowledgement has been filed, the Respondent must, if he or she intends 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. However, a delay in finalising the divorce is inevitable if the forms are not returned on time.

Within a few days of receiving the acknowledgement of service form from the Respondent (and Co-Respondent) the Court sends to the Petitioner’s solicitors a copy of the form(s) of acknowledgement of service.

If the Respondent is not defending the petition, the petitioner can apply for the Decree Nisi to be pronounced. 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 any circumstances (including those relating to the 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 the request for a date for the first decree of divorce (‘Decree Nisi’) to be pronounced.


If acknowledgements of service are not returned to the Court?


Proof that the Respondent and any named Co-Respondent have received the Petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for someone to deliver the petition to the Respondent and any named Co-Respondent personally or obtaining a Court order that proof does not need to be given that the Respondent and Co-Respondent have received the petition, this is called ‘dispensing with service’.

On receipt by the Court of the Application for a date for pronouncement of the Decree Nisi and Affidavit, the District Judge looks through the papers and, if they seem in order, gives a certificate for Decree Nisi to be pronounced. Both the Petitioner and the Respondent (through their solicitors) are then advised of the date fixed for Decree Nisi. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. The couple do not have to attend Court.

If the arrangements in relation to the finances and children are settled between their parents or there are no children:

(a) 6 weeks and 1 day after the date of 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 be available as quickly as the same day. A fee, currently £45, is payable.

(b) 3 months after the Petitioner could first have applied for Decree Absolute, the Respondent may apply for the Decree Absolute if the Petitioner has not already done so.


What normally happens with regard to the children?


If agreement has been reached, the District Judge is unlikely to interfere. If agreement has not been reached, the District Judge may ask the Petitioner and the Respondent (accompanied by their solicitors) to attend an informal appointment to explore a solution to the difficulties. The District Judge may 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 divorce.

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Thurstan Hoskin Solicitors, Chynoweth, Chapel Street, Redruth, Cornwall, TR15 2BY
Tel: 01209 213646 - Fax: 01209 210069 - info@thurstanhoskin.co.uk


Principal: Thurstan Hoskin BA
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