Divorce
Proceedings
This
leaflet is designed to supplement the information and advice given to you during
your initial interview. It also only primarily deals with UNCONTESTED divorces.
If
you are the person commencing divorce proceedings you will be know as the PETITIONER. Your spouse will be known
as the RESPONDENT. These “titles”
will be used in all subsequent legal proceedings, including any separate
application in relation to the children or financial issues.
A
divorce will ONLY bring an end to your marriage. It does not deal with the
financial matters which may flow from your marriage. On average uncontested
divorce proceedings take 4-6 months to conclude and are dealt with in the county
court.
Divorce
Petition
There
is currently only one ground for divorce, which is the irretrievable breakdown
of the marriage. A Divorce Petition can be presented to the court on the basis
of:-
(1)
adultery
(2)
unreasonable
behaviour
(3)
separation
for 2 years WITH
CONSENT
(4)
separation
for 5 years WITHOUT
CONSENT
(5)
or
desertion (for a period of not less than 2 years)
If
you decide to commence divorce proceedings, a divorce Petition will be drafted
for you using one of the above facts. Your original marriage certificate will be
requested as this needs to be filed at the court with your Petition. A fee may
also be payable depending on your financial circumstances.
If
there are any minor children, a Statement of Arrangements form must
also be completed. This gives the Court information regarding the children,
e.g.: - where they are living, with whom, contact arrangements, and if the child
is suffering from any health or learning disabilities.
Once
both documents have been drafted, your will be asked to approve the contents and
sign them if applicable. NO document will be sent to the Court without you being
entirely happy with its contents.
Issuing
the Divorce Petition at Court
The
papers are then sent to the Court for issue. The court will serve the papers
directly on your spouse together with an Acknowledgement of Service form. This
must be returned by your spouse to the Court within 14 days from the date of
service. This form merely asks whether or not the Respondent intends to consent
to the divorce and if s/he agrees with the arrangements for the children (in
accordance with the statement of Arrangements form). It also deals with the
question of divorce costs, which will be discussed with
you.
Once
the respondent has returned the Acknowledgement of Service form to the court a
copy is sent to the firm.
If
however, the Respondent does not consent to the divorce or there is a problem in
respect of the divorce costs, this must be resolved prior to an application for
Directions for Trial being made.
On
the basis that the Respondent is not going to contest the proceedings then the
next step is to apply for directions for Trial. The application will be
accompanied by an affidavit which you will need to have sworn in front of an
independent solicitor (not a member from this firm) or alternatively at the
local County Court. If you attend before a solicitor there will be a fee payable
of £5.00 to swear the affidavit and £2.00 per exhibit. If you attend at the
local county Court then the service is free, but you should ensure that the
person before whom you swear your affidavit initials any manuscript amendments
and also signs the exhibit sheet.
Decree
Nisi
Your
solicitor will forward the application and affidavit to the Court and request
that a date is given for Decree
Nisi. The district judge will consider your Petition and Affidavit and if
s/he is content the grounds for the divorce have been proved will give a date
for the pronouncement of Decree Nisi.
On
a few occasions the District Judge may ask for more information which will have
to be given before s/he will allow a date to be given for the Decree Nisi. If
this is the case we will advice you of the additional information which we
require.
On
notice of the date for Decree Nisi, the Judge will also make any award of costs
as requested in the petition. Normally speaking the petitioner is able to
recover their divorce costs from the Respondent but in many circumstances an
agreement is reached between the parties regarding this issue and the costs may
be shared or the respondent asked to make a fixed contribution.
The
pronouncement of Decree Nisi will be made by a District Judge in open court and
whilst you may attend there is no need for you to do so. You will be given full
details of the date and time of the hearing.
Decree
Absolute
Six
weeks from the date of the Decree Nisi, you may apply for the Decree Absolute, which will finally
bring an end to you marriage. However, you may be advised not to apply for
Decree Absolute until all financial issues have been resolved.
When
Decree Absolute has been pronounced, the original document will be sent to you
and the effectively replaces you marriage certificate. You should keep this in a
safe place, as it will need to be produced should you ever wish to prove your
divorce or to re-marry in the future. You should also be aware that upon the
Decree Absolute being pronounced, any existing Will provisions in favour of your
spouse will be deemed to have been deleted from you Will. You may therefore wish
to review your Will following divorce.
If
you do not apply for Decree Absolute at the appropriate juncture (i.e. six weeks
from Decree Nisi); the Respondent may apply for the Decree Absolute three months from that date. That is
approximately 4 and half months after Decree Nisi. The application is made “on
notice” and you will have advance warning of the application. Again, if this is
applicable to your case we will give you specific information regarding this.
This leaflet is only
meant to give you general information regarding divorce procedure. If you have
any specific questions you should ask the solicitor dealing with your
case.