Client Information: Divorce

Last updated: 04/2008

Divorce proceedings

1. There is a rule that you cannot be divorced unless you are married for one year.
2. Divorce proceedings can only be issued on the grounds off irretrievable breakdown of the marriage. The law states this can be proved only by one of the following five facts:
   1. Your husband or wife has committed adultery;
   2. Or has behaved unreasonably;
   3. Or you have been separated for at least two years and your husband or wife consents to the divorce being granted;
   4. Or you have been deserted by your husband or wife for at least two years;
   5. Or that you have been separated for at least five years and in this case, you do not need you husband or wife’s consent.
3. From the point of commencing divorce proceedings to the point where you are divorced and free to remarry takes approximately 6—9 months. There are some case’s that come outside that estimate for a number of reasons.

Mediation

This is an option for all clients, whether paying privately or when legally aided. Family mediation is a process of negotiation with your husband or wife about the practical effect of separation. A mediator will sit around a table with you and your husband or wife to help reach an agreement. This can be useful because the breakdown of a relationship can make negotiation difficult or painful. A mediator is trained to keep discussions going forward and to minimise time spent arguing about the past.

If you would like to know more about mediation or about details of the local mediation service then please do not hesitate to ask. I have enclosed a leaflet called “Talk” which may help initially.

Finance and property

When applying for a divorce there are a number issues which you can ask the court to decide upon. The court can make orders about ownership of property, the sale of the property, savings and investments. The court also has the power to order maintenance payments to either spouse by the other. Maintenance for the children has now become the responsibility of the Child Support Agency and the courts do not make maintenance orders for children apart from some certain exceptions, which we will discuss with you if appropriate. The legal term for the application to the court for financial matters on divorce proceedings is called “Ancillary Relief”. The person who starts the divorce the “Petitioner” makes the initial application for ancillary relief in the divorce petition (the main divorce document) in the prayer section. We always keep this section in the divorce petition whether or not it is appropriate in the circumstances to make any financial applications to protect the Petitioner’s position. If you do go onto make a separate application to the court for ancillary relief orders, it can take anything from six to three years or longer in unusual cases.

Children

The Children Act 1989 has had very important effect on the courts when dealing with children. The court no longer makes “custody” or “access” orders automatically when a divorce is finalised. It is only when a separating couple do not agree about arrangements for children, such as with whom the children should live or how often they should see the absent parent that the court becomes involved. In the divorce, where there are children involved, the Petitioner will file A Statement of Arrangements for Children form which should be agreed with the other parent if possible and which explains to the court what arrangements have been made on separation. If no arrangement can be reached, either parent can apply for orders. For example, a Residence Order makes it clear whom the child should live with and a Contact Order sets out arrangements for the children to see the absent parent. If this is relevant in your case, we will discuss this with you further.

Planning for the future

When going through a divorce, it is helpful to start planning for the future. This includes considering the financial implications and making a will. On the divorce being made final (which is called the pronouncement of Decree Absolute), any will you made before is affected. You may make an appointment with Mr Alan Ostle of Alletsons should you decide to make a will.

Ownership of your home

The other important issue is ownership of the property. If you and your husband or wife are named on the title deeds as joint owners then there are two ways you may be owning the property. You could either hold the property as “joint tenants” so that when one of you dies, the other automatically owns the whole property or, as “tenants in common” so that on death of one spouse, that person’s share passes either to the person who is named as their beneficiary in their will or under the intestacy rules. Sometimes when separating, people wish to change ownership to reflect they are separating, from joint tenants to tenants in common. This can be done by straightforward and inexpensive process of serving a notice. This is less frequently done where there are children but it depends on the individual circumstances. If you want to discuss this with us further, please do so as soon as possible.

If only your husband or wife is named as the owner of the property it is usually sensible to protect yourself against the risk of them selling the property without our knowledge by registering a caution on the title deeds. We will discuss this with you in more detail if it is appropriate.

Practical steps

1. If there is any indication that your husband or wife is about to dispose of an asset or money on the near future please contact us because it may be that we need to take emergency steps to deal with this issue.
2. Domestic violence is an issue the courts take very seriously. If you are feeling unsafe or threatened then it is important to discuss with us the courts emergency protection powers. We can move very quickly if necessary and obviously calling the police may be the first step to take depending on the circumstances.

Procedure.

There are basically four stages we have to go before you obtain a divorce.

1. Issuing of divorce and service—once we have prepared your divorce petition and if you have children, the statement of arrangements for children form, we send them to the court to be issued. The court then sends copies to your husband or wife who is then expected to return an Acknowledgement of service form to the court within 14 days, confirming that he or she has received documents. It is considered important that all reasonable steps are taken to make sure a person is aware of divorce proceedings affecting their marriage.
2. If your husband or wife does not return the form to the court we will need to consider other ways of proving that he or she has read the papers. This might include arranging for them to be personally served by a court bailiff or process server or applying to the court to “deem service” if we can show that your husband or wife has received the papers or applying to dispense with service if we do not know where your husband or wife is living or working. If we do have to make an application about service, it will delay the divorce.
3. Applications for directions for trial (special procedure)—once the court has received an acknowledgment of service form or are satisfied that the papers have been served, we can apply to the district judge to consider whether or not you are entitled to a divorce. To do this you will need to swear an affidavit in supporting the divorce, confirming that the contents of the Petition are true. Once we have sent this to the Court it is usually about three to five weeks before we hear from the court again.
4. Sometimes there maybe a delay at this stage if the district judge requests further information.
5. Decree nisi—once the district judge has considered that you are entitled to a divorce and that all the procedure is correct, we will receive a certificate of entitlement to decree nisi with a date when the decree nisi will be announced in court. The decree nisi is not the final divorce document; it proves that you are entitled to a divorce but you cannot have it just yet. Usually you do not ha e to attend a hearing when decreed nisi is announced in court.
6. Decree absolute – once we have received the decree nisi from the court we have to wait six weeks and one day before applying for the decree absolute. When you receive a decree absolute you are no longer married to your husband or wife and the divorce is final.

N.B: If you are applying for a decree of judicial separation, the procedure and the ground for the judicial separation are the same but stops at the decree nisi stage Instead of a decree nisi, you will be granted a decree of judicial separation. This means that you are still married not divorced and therefore not free to remarry. Your separation has bee formally recognised by the court. You can make applications to the court to deal with the financial side of separation, the ancillary relief in the same way as you can in divorce proceedings.

Judicial separation proceedings are useful where there is a religious objection to divorce, or the parties have been married for less than a year. The judicial separation can be converted to divorce later on, if appropriate.

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