To obtain a divorce you must show that the marriage has irretrievably broken down. To do this, the divorce petition has to be based on one of five statutory "facts":
If the divorce is straightforward and there are no financial issues to be resolved you should be able to obtain your divorce within about 6 months. If you also need to sort out a financial settlement you should allow about 12 months to complete the whole process, although a complicated or difficult case may take longer than that.
A Petition based on Adultery may be provide a straightforward means of getting a divorce. The Petition does not need to name the other party and neither does the relationship need to be the cause of the marriage breakdown. Proof of adultery is usually simply provided by the admission given by the Respondent in the "Acknowledgement of Service" form. Adultery petitions are therefore common where there is agreement about the divorce. Frequently, there is also agreement the costs will also be shared. Adultery petitions may therefore be a convenient and amicable solution.
Petitions based on unreasonable behaviour may be the best option if the other party is not co-operating. The petition will set out details ("Particulars") of the behaviour which you consider unreasonable. You will have to refer to at least one complaint within the last 6 months (if you are still living together) or within 6 months counting backwards from the date of separation. The particulars need not mention every problem within the marriage. The matters raised do however need to be sufficiently serious to persuade a Judge the marriage really has irretrievably broken down.
You will probably need a solicitor's advice about this and practice may differ from one court to another. The kind of behaviour referred to can be of many different kinds and can range from allegations of violence, drunkenness and financial irresponsibility through to lack of social life, failure to participate in domestic chores etc.
If you have separated for at least two years, and if the other party agrees to the divorce you can petition on the basis of two years separation. If the other party does not agree the divorce, you can still issue a petition but you will need to wait until you have been separated for five years. It is also technically possible to petition for divorce on the basis of "desertion" but the law of "desertion" is quite complicated and this is almost never used in practice.
Each situation may differ slightly according to the circumstances but here are the main stages:
It is considered good practice for the solicitors to warn the other party what is going on and to try and negotiate the terms of the divorce. They will for example try and agree who is to divorce who; on what grounds; who will pay the costs and draft divorce papers will be sent to the other party or his or her solicitors for comment.
The divorce papers consist of:
There is a court fee payable on issue. The Petition is sent to the Court who will "issue" it by giving it a unique Case Number. It is important to keep a record of this number if you ever have to query anything with the Court since they will be unable to trace the paperwork without it. The Court send a copy to the Respondent.
The Respondent will receive a form with the divorce papers known as an "Acknowledgement of Service". The Respondent is requested to return this to the Court within 8 days. On the Acknowledgement form, the Respondent is given the opportunity to say whether he/she wishes to defend and whether he/she wishes to dispute any claim for costs.
To proceed with the divorce the Petitioner needs either a signed acknowledgement form or some other proof the papers have been served on the Respondent, for example proof of service by the Court Bailiff or an affidavit of service from a Process Server. If you receive divorce papers, it is important to get them back reasonably quickly, since failure to return the form could result in an increased bill for costs. However, if you can't get it done within 8 days there is no need to panic. Court Bailiffs and Process Servers are rarely called on immediately. In practice, just get to see a solicitor as soon as you can.
Although it may appear polite to write or telephone to say you will deal with the form as soon as you can, we do not advise this. Your letter or an account of the conversation could be used as proof of service. You are safer discussing the situation with a solicitor first.
Once the Petitioner can prove the papers have been served, he /she has to complete an affidavit in support of the petition. This has to be sworn on oath in front of a "Commissioner for Oaths" in this context usually a solicitor or FILEX from a firm not involved in the proceedings or an authorised Court official in order to verify that the contents of the divorce papers are true. The Acknowledgement of Service is normally attached to the affidavit ("exhibited"). The Affidavit is then sent to the Court along with a "Request for Directions for Trial under the Special Procedure". In other words the Court is requested to deal with the divorce through the post.
A District Judge will look through the paperwork and will certify whether a divorce should be granted and whether the arrangements for the children described in the Statement of Arrangements are satisfactory. In years gone by it used to be necessary to go and see a Judge to explain the arrangements for the children but this is not now usually necessary unless there is clearly a point of dispute or something which looks amiss.
The Court automatically lists the matter for a Decree Nisi date. The Decree will be pronounced in Open Court but there is no need for either party to attend and most people do not. The only occasion when you may need to attend is if there is a dispute as to the costs of the divorce. Costs are usually sorted out between solicitors in correspondence. However, if a dispute remains, either it may be possible to write to the Court setting out the arguments in relation to costs, or it may be necessary for the parties to attend to argue the point. Practice in each court may differ so you need to check with your solicitor or with the court. The Decree Nisi is sent out to the parties through the post.
The Petitioner can apply for the Decree Absolute six weeks after the date of the Decree Nisi. On a calendar you therefore need to count up six weeks and one day from the Nisi date and that will be the earliest date you can be divorced. The application is a very simple form which goes to the Court along with the £30 fee or an application from Exemption from Fees form (assuming your local court insists on having this twice over). The Absolute is usually back in your solicitors office within a matter of days. If the Petitioner does not apply immediately, the Respondent can apply 3 months after the earliest date when the Petitioner could have applied (i.e 6 weeks and 1 day + a further 3 months). A Respondent's application is more complicated because it has to be "on notice" and there will be a hearing when the Petitioner can object to the Absolute being granted. For example if financial issues (in particular pension provision) have not been sorted out, a Respondent's application may be refused.
A Separation Deed is a formal document which sets out the terms of agreement between a couple who separate. It is a contract which in the absence of divorce proceedings and an "ancillary relief order" is enforceable in the same way as any other contract but it does not have the same validity as would an ancillary relief order made by the divorce Court.
Separation Deeds are very useful where a couple decide to separate for a period of two years and obtain a divorce at the end of that period but where they wish to deal with financial matters from the outset. Provided the Deed has been entered into voluntarily by each party; there has been full and frank disclosure of financial assets on both sides; and the parties have each had legal advice, it is highly likely that when the divorce is obtained the terms of the Deed can be confirmed in an ancillary relief order. However, the divorce Judge does have a discretion in these matters. Consequently, if a Deed has been entered into in unfair circumstances or if there is a significant change in circumstances which makes the original agreement unfair, there is a risk one of the parties could apply for the Judge to look at the situation afresh.
Separation Deeds are not suitable if the parties cannot agree. You cannot make someone sign one and if you are not in agreement, you would be better off working out on what grounds to issue divorce proceedings so that you can make an application to the Court.
By "Ancillary Relief" we mean the financial proceedings ancillary to divorce. Most commonly, an agreement is negotiated and incorporated into a consent order. Whatever you do, take a lawyer's advice before signing an "Ancillary Relief" order. These are technical documents and you really need to have someone look at the wording and make sure it says what you think it means.
Assuming you are able to reach an agreement, your solicitor will draw up the Ancillary Relief order and send it to the other party's solicitor for amendment and approval. If the order provides for a transfer of property it will also be necessary to obtain the approval o f the Building Society; and if there is a pension sharing or splitting order the terms will need to be agreed with the pension providers. When everyone is happy with the wording, the order is sent to the Court through the post along with a brief statement of each of the parties' financial circumstances and the Court fee. In due course the order will appear back from the Court bearing the Court seal and having been approved by a District Judge. Alternatively, the Judge may raise a query which has to be dealt with and the order re-submitted. Occasionally (particularly if one of the parties is not legally represented and the order does not on the face of it appear entirely fair) the Judge may ask the parties to attend a brief hearing and may query the terms agreed.
The Court can only make orders provided for in the Matrimonial Causes Act 1973 (as amended). Other matters can be agreed but will usually have to appear in a separate part of the order known as the "Recitals" or one party may give a formal undertaking to do or not do certain things.
The Matrimonial Causes Act allows the following orders to be made:
If there is a dispute about Child maintenance, the issue normally has to be referred to the Child Support Agency. Child maintenance can only be dealt with by a Court in certain circumstances:
It follows that while Court orders do often include child maintenance, in most cases this will be where the parties have managed to negotiate an agreement as to figures payable.
There is no hard and fast rule. The Court will apply a number of statutory factors which include the age, income earning capacity, responsibilities of the parties, their needs, the length of the marriage and the parties' resources including their pensions. The interests of minor children always come first so that providing accommodation for them will be a priority. Working out this balancing exercise is where you will find a solicitor can really help.
In a minority of cases it will be necessary to issue ancillary relief
proceedings. The procedure is designed to encourage the parties to reach an agreement rather
than taking the case to a full contested hearing. It works within a timetable set out in Court
rules and which is governed by the Court. The main steps will be:
Issue
An application for Ancillary Relief can be issued by either party to a
divorce. There is a simple form to complete and Court fee to pay. The Court issues the
application; automatically makes an order for documents to be prepared by both sides; lists
the matter for a First Appointment in 12 to 16 weeks time; and sends copies of all the paperwork
to the Respondent to the application within 5 days. If there is an application for a transfer
of property order or for pension provision, the Applicant also has to arrange service on any
Building Society or Pension Provider.
Documents
A large number of documents need to be prepared before the First Appointment and you and/or your solicitor will be extremely busy getting them all ready in time. The documents required are:
The Chronology, Statement of Issues and Questionnaire have to ready one
week before the First Appointment and the Form H the day before.
First Appointment
Depending on local court practice this will may be used as a first opportunity
by the District Judge to address issues and encourage the parties to negotiate. Procedural matters
are dealt with and directions are given by the Judge about the future conduct of the case.
The appointment takes place in private "in Chambers" commonly round a large set of desks in the
Judge's room. The only people present will be the Judge, the parties and their legal
representatives. You may be represented by a solicitor or a barrister.
You may feel more comfortable if you bring a friend with you for moral support but if you do so,
your friend will need to wait in the public part of the building while you go in to see the Judge.
Financial Dispute Resolution Appointment
The "FDR" is usually listed about 2 months after the First Appointment. By that time both parties should have available all the relevant facts and documents and the appointment will be led by the District Judge with a view to encouraging the parties to reach a settlement. Offers will usually have been made on both sides and these will be considered by the Judge and each of the legal representatives will explain their respective positions.
Every FDR is different and each Judge has their own way of conducting them. However, the Judge is likely to give a view as to which arguments are likely to find favour and may indicate what kind of order he or she would make if hearing the matter. The parties and their lawyers are then invited to leave the Judge's room in order to negotiate. The main part of the negotiations are dealt with between the lawyers (most probably down a corridor, while you wait in an interview room if you are lucky or in some other part of the corridor if the Court is crowded). Your lawyer should come back and report to you at regular intervals as to what is being said.
If agreement is reached, the District Judge may make an order there and then
but it is quite usual for the matter to be adjourned so the order can be drafted by your solicitor
back at the office, approved by the other side and then sent to the Court for approval. If the
matter is not agreed, the Judge will make any further directions required and set the case down for a final hearing.
Final Hearing
If the parties are still not in agreement, the matter is listed for a final hearing. This is a much longer hearing, again heard in private, although it may take place either in the Judge's room or in a Court room. A very straightforward case might be set down for half a day. A longer case will take up a whole day or more. The Judge who dealt with the FDR cannot deal with the final hearing because he/she will be aware of the without prejudice offers which cannot be disclosed to the trial Judge.
You will find the room will be awash with "bundles". All the paperwork will have been gathered together and everyone should have a paginated bundle of all the relevant documents organised in a particular order and usually put into lever arch files. It is the Applicant's solicitor's job to get this organised and since documents often appear just before the hearing this can be very troublesome. If you want to help your solicitor, get your documents sorted out well before the hearing!
At the start of the case, the solicitor or barrister for the Applicant will
make an opening speech explaining what the case is about. Each of the parties and any witnesses
then give evidence and are cross-examined: the Applicant going first followed by his/her witnesses and the Respondent and his/her witnesses giving evidence second. The lawyers each make a closing speech. The Judge will then give his or her Judgement and make whatever order he/she considers appropriate. After the order has been made there will be more arguments presented on the question of costs and a costs order may be made.
Implementation
Several days later you should receive a copy of the typed order from the Court
and your solicitor will start doing the work required to put the order into effect. This can be
time consuming and may involve transferring a house or endowment policies and organising a pension
sharing or attachment order.
Assessment of Costs
The file will not be finished with until the costs have been sorted out. This may take a very long time! If you have the benefit of a public funding certificate, the costs will be recorded in a lengthy bill of costs. You will be provided with a copy and given an opportunity to ask for a hearing before a District Judge if you are not happy with what your solicitor is charging ("an assessment appointment"). The hourly rates are fixed by the Lord Chancellor's department each year, so if you object you can only really say that your solicitor took too long doing something; did a job which was not necessary; or that the bill duplicates items or includes work which was not done.
Whether you ask for an assessment appointment or not, the bill will be scrutinised by the Judge who will carry out a provisional assessment. Items may be knocked off. The bill is returned to your solicitor. If your solicitor is not happy, he/she can ask for an assessment appointment. Eventually, an assessment will be finalised and the final figure is sent to the Legal Services Commission so that your solicitor can be paid. Interim payments on account will have been paid in the meantime, so it is only the balance which is paid over at this point. When it is all finalised, you should be told what the final figure is, since this will usually have to be repaid by you to the Legal Services Commission under the operation of the "statutory charge". See the section on Public Funding for further details.
If you are a private client, your solicitor will have been sending you invoices as the matter went along. A final invoice will be raised and as far as your own costs are concerned that will be that.
However, it may be that either you are ordered to pay your spouse's costs or that he/she is ordered to pay yours. Sometimes a figure will have been fixed by the Judge at one of the hearings. More commonly, there will be an order for the costs to be "assessed if not agreed". If that happens you will find there is a procedure very similar to the assessment procedure described above. Again a bill of costs will be prepared. The figures will either be negotiated between the solicitors or there will be an assessment hearing and a costs order will then be made.
Mediation can be a very helpful way of resolving family problems arising on divorce or separation. The Mediation Service Provider will usually arrange to see each party separately and will then fix a number of appointments for joint mediation. Those meetings can be used to address financial issues, arrangements for your children or both. As the matter goes on you will be encouraged to return to see your respective solicitors to look at the proposed arrangements from a legal viewpoint and to convert an agreement reached into a formal agreement or court order. You need to bear in mind that if you wish to obtain public funding to issue proceedings you must have tried mediation first (or be exempt for example if you live a long way away from your former partner).
If you are negotiating a Deed of Separation or an Ancillary Relief order on divorce, it is vital that you provide your husband or wife with a full and clear picture of your financial situation along with relevant documents in support. Any agreement reached or ancillary relief order made by the Court could be invalidated if full disclosure of your financial position has not been made. This obligation is a continuing one and extends to any material changes which occur after initial disclosure has been given.
If the parent caring for the children is on Income Support and the Department of Work and Pensions requires you to do so, you will have no option but to allow the Child Support Agency to deal with child maintenance. If you refuse to co-operate with the Agency, unless there is a risk of domestic violence from your former partner, your failure to co-operate will lead to a reduction in the Income Support otherwise payable. However, where maintenance is being paid by agreement (including an agreement incorporated into a Court order) the Agency may well be content to leave things as they are.
If the parent caring for the children is not on Income Support, you will be free to reach an agreement and have that agreement incorporated into an Ancillary Relief order. This places the matter of child maintenance in the hands of the court for at least one year following the date of the order. However, if the order was made on or after 3rd March 2003, either parent may apply to the CSA a year later. The starting point for calculating maintenance payable is to take a set percentage of the non-resident parent's net income:
The calculation does not end there. There are reductions available depending on the number of nights per year when the children stay with the non-resident parent and reductions into account the non-resident parent's new family. Where a father has to pay maintenance for children living in a number of different family units the calculation becomes quite complicated. A solicitor should be able to work it out for you so that you are forewarned as to what to expect. Your solicitor will also be able to assist in any dispute with the Child Support Agency, if you do not agree with the assessment made.
There is much information about the Child Support Agency on their own web-site which is at www.dss.gov.uk/csa
Divorces and family problems are often dealt with on legal aid (now known as "public funding". There are a number of types of public funding which can help you. These are explained in our section on Legal Aid. Please click here.
Stevens also recognise the financial changes brought about by separation and divorce can place an impossible stress on the family finances and make it very difficult to fund legal fees although legal advice may be desperately needed. At Stevens we try and make it possible for all clients to have at least some access to our services. We operate a standard fee for straightforward divorces; reduced fees for other family work and we are willing to give you advice in the background if you decide to go it alone and obtain a divorce or deal with other issues on a "DIY" basis. Please click here for further information.
If your marriage or relationship is in difficulties but you are not sure whether to separate or if you are not not sure whether a separation is likely to be permanent, you may be wondering what your rights are and what options are likely to be available.
Early advice from a competent lawyer may completely change the way in which your separation is worked out. Hopefully, once you know your rights and the likely consequences of certain courses of action, you will be better equipped to arrange the separation in a way that does not prejudice either your own or the children's future. Also, you should be better able to deal with the situation with the minimum of bad feeling and acrimony.
We are happy to advise in this situation, indeed we consider early advice as the most sensible step to take. Sometimes it may even set you off in a direction which leads to the marriage being saved. If you decide not to go ahead and you are reconciled, we shall not mind at all, far from it.
We operate an initial interview service. This is dealt with on a completely confidential basis so that your husband, wife or partner need not know you have consulted us and it is without any obligation to take the matter further. You will be able to come in and see a senior solicitor or lawyer who is an expert in this field. The interview will usually last about an hour and the lawyer will first collect some basic details about the members of the family and your financial circumstances etc. The lawyer will explain clearly the financial and other implications of divorce and your available options. Following the interview we provide a detailed report explaining the legal implications of your situation, setting out possible grounds for divorce, the likely financial repercussions and a costs and time estimate in the event of our further involvement. If you have already decided that the marriage is over we can draft an initial letter to your husband or wife for your approval and give you a "game plan" showing exactly what the next steps will be. For an appointment please contact us.
Sarah Horseman is qualified collaborative lawyer and a member of the International Academy of Collaborative Professionals whose website is at www.collaborativepractice.com If you would like further information about collaborative law please contact Sarah direct.
For further information about collaborative law generally please consult the Collaborative Law section of the Resolution web-site at www.collabfamilylaw.org.uk
To find a local collaborative lawyer please look at the Saffron Walden Family Law Group at www.swflg.co.uk, the Cambridge Collaborative Family Lawyers Group at www.ccflg.co.uk, or the East Anglia Collaborative Lawyers Group at www.clear.gb.com.