Divorce
Whilst the circumstances of each marital breakdown are different, the basic procedure for bringing a marriage to an end in the UK is relatively straightforward. The following points are designed to give you an overview of such proceedings.
For cases involving nullity, judicial separation or foreign marriages, specialist legal advice is required.
In divorce proceedings, the person who asks the court for a divorce is called the Petitioner. The person being divorced is called the Respondent.
The Criteria for Divorce
• In order to obtain a divorce, a couple have to have been married in a legal marriage ceremony, here or abroad. Proceedings to divorce can be brought in the UK providing at least one of the parties is domiciled or habitually resident here
• The parties have to have been married for a minimum of 12 months
• The marriage must have broken down irretrievably
The Grounds for Divorce
• Irretrievable breakdown of the marriage must be proved by basing a divorce petition on one of 5 facts:
o Adultery (the other spouse having had sexual intercourse during marriage with a member of the opposite sex)
o Unreasonable behaviour (a spouse has behaved so unreasonably that the other cannot be expected to go on living with them)
o 2 years of living separate and apart, providing the other spouse consents
o 5 years of living separate and apart (the other spouse’s consent is not required)
o desertion for a period of 2 years prior to the petition being issued
The Procedure
• If you are petitioning for divorce, we will meet with you to discuss the funding for such proceedings and will ascertain whether you could claim Legal Aid from the Legal Services Commission. We will then prepare a draft divorce petition and a form about the arrangements for any children of the marriage for you to approve. Sometimes, it is appropriate to send a draft to your spouse for them to consider before lodging the papers at court.
• We will then file your divorce papers at court along with your marriage certificate, a form about the children and the necessary court fee and the court would serve a copy upon your spouse. Your spouse is asked to complete an Acknowledgement of Service form within 7 days, indicating whether or not they intend to contest the divorce.
• If your spouse decides to contest the divorce, you will need specialist advice from us.
• If your spouse does not file the Acknowledgement of Service, we will give advice on the options available to you; a court application to prove that they have been served is customary.
• When the Acknowledgement of Service has been filed, we will prepare an Affidavit of Support on your behalf which confirms the details in the divorce petition and which we file at court once you have signed it. The court will then review the papers and providing the judge is content, he will then certify that you are entitled to a divorce. He can also make orders about the children at this stage if he has any concerns about their welfare.
• Approximately 6 to 7 weeks after issuing the petition, the court will pronounce Decree Nisi (the mid-way point of the proceedings). It will also decide if the Respondent should contribute towards your legal costs for the divorce. If a financial settlement has been reached, a consent order setting out the agreement can be sent to court at this stage for the judge to approve.
• Six weeks and 1 day after Decree Nisi, the Petitioner can apply for the final decree of divorce – Decree Absolute. This ends the marriage. The Respondent can apply for the Decree Absolute 3 months after the 6 week period, if the Petitioner unreasonably delays. You should note however that there are financial repercussions which flow from Decree Absolute, particularly in regards to pension rights and it is always prudent to take specialist legal advice from us about your financial rights and responsibilities before ending your marriage. Obtaining a Decree Absolute ends the marriage but not your financial claims against each other.
Financial Proceedings
• Financial proceedings are known as ancillary relief proceedings and although they arise from the divorce, they are in fact quite separate (as are proceedings about the children). Since financial proceedings vary greatly from case to case, it is not possible to give a standard outline which covers all. However, we can break the process down into three main sections:
o Disclosure ; this is the process whereby each spouse discloses their financial circumstances to the other. This enables us to advise on how to divide the assets and income fairly
o Negotiation : we will negotiate on your behalf with your spouse or their lawyer to try and get the best deal possible for you. Any such negotiations are only undertaken once we have talked them through with you. If a deal is done, a consent order can be lodged at court for the judge to make final.
o Court : if your spouse does not provide disclosure or an agreement cannot be reached, we would discuss the option of issuing ancillary relief proceedings with you. The court would set out a timetable in which certain documents have to be filed, and would encourage both parties to try and agree where possible ; only if agreement is impossible would a court list the case for a formal hearing. An average financial case takes about 6 months.
The Most Important Thing………Children
Parents often argue about the children when a marriage ends. It is not
possible to give a detailed procedure for such cases because each child and family is different.
We take a conciliatory approach wherever possible and encourage our
clients and their spouses to take a conciliatory approach.
One of our first considerations is whether our clients would benefit
from attending mediation to see if they can reach an agreement
themselves. We can provide the names and addresses of mediators.
If mediation does not work or is not appropriate, we can help by:
• Negotiating arrangements with your spouse
• Advising you on the advantages and disadvantages of court proceedings
• Representing you in court proceedings for residence (custody), contact (access) and other orders relevant to the children
In Summary...
The breakdown of a marriage is traumatic. We aim to help, not hinder,
and to do so cost-effectively and efficiently.
Our team comprises experienced and specialist family lawyers, who
will give you sound and comprehensive advice.
Fur further information or advice, please contact Yvette Rooke
t: 01752 675151 or freephone: 0800 0731 411
e: yvette.rooke@foot-ansteys.co.uk
