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Divorce Procedure
HOW DO I START DIVORCE PROCEEDINGS?
In order to proceed with a divorce in England and Wales you must have been married for at least 12 months. If this is not the case then a Nullity Application or Judicial Separation may be appropriate.
It does not matter in which country you got married, although a Marriage Certificate will need to be filed with the Divorce Petition. However, it is important that you satisfy the Jurisdiction requirements. This usually means that at least one of you lives in the UK and has done so for at least 6 months.
WHAT GROUNDS DO I NEED TO SHOW TO GET A DIVORCE? The only ground for divorce is that the marriage has irretrievably broken down. There are FIVE facts which establish that the marriage has irretrievably broken down and you must establish one or more of them:
THE FIVE FACTS LAID DOWN BY LAW 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 agrees to the divorce.
The system is still fault-based and you cannot obtain a divorce if you simply state that you have grown apart or that you do not love each other any more. |
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HOW DO I PROCEED?
This depends on which of the five facts you wish to rely.
a) Adultery
Unless you have incontrovertible evidence, it is recommended that you obtain your spouse’s agreement to a petition based upon adultery. It is extremely costly, both financially and emotionally to become embroiled in Defended Divorce Proceedings, which may be the case if your spouse denies the adultery. b) Unreasonable behaviour
Again, if you are proceeding on unreasonable behaviour, Resolution (previously the Solicitors Family Law Association) recommends that you agree the detail of the Petition with your spouse before filing it with the court. However, this depends on your individual circumstances and there may be valid reasons not to discuss the petition with your spouse prior to filing it.
c) Desertion
It is rare for divorce petitions to be based upon this fact. The key point is that you have to show that your spouse left without your agreement.
d) 2 years' separation by agreement
If you wish to proceed on 2 years' separation then your spouse’s agreement is required and we would recommend that you obtain this in writing prior to proceeding. You can be separated from your spouse and still reside in the same property, but this is very much fact-based and you must have evidence that there was no degree of
Cohabitation during the 2 year period on which you wish to rely.
e) 5 years' separation
You can proceed on this basis without your spouse agreeing, although there are limited circumstances in which your spouse could prevent a decree being granted, for example, a claim to severe financial hardship if the divorce were to proceed, such as the loss of a widower's/widow's pension.
Most divorces are based on either adultery or unreasonable behaviour. This is because the other three facts require periods of separation of at least two years and most couples do not want to wait. The vast majority of divorces are undefended. |
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IS THERE A STANDARD DIVORCE FORM?
Yes, this is called the Divorce Petition. It has sections which include the following: 1. Details of the marriage.
2. Confirmation of how you fulfil the Jurisdictional requirements.
3. Your personal information, name, address, occupation.
4. Personal information about your spouse, name, address, occupation.
5. If there are any children, their full names and dates of birth if they are under 18.
6. A statement that the marriage has irretrievably broken down.
7. Details of the fact or facts on which you wish to rely.
8. A PRAYER setting out details of the relief claimed:
a) A request for the divorce to be granted.
b) Any claim for costs
c) Any intended claim for financial provision
d) A request for an order relating to the children (this is rare)
Often the prayer will list all available types of claim for financial provision. This does not mean that you or your spouse will be making all these claims; it simply keeps the options open. The person who files the Divorce Petition is known as the Petitioner and their spouse is known as the Respondent. If you are proceeding on an adultery petition and wish to name the third party they are known as the Co-Respondent and you can make a claim for costs against them. |
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WHAT HAPPENS IF WE ATTEMPT RECONCILIATION AND IT DOES NOT WORK OUT?
The law encourages reconciliation. If it does not work out you may still be able to proceed on a Divorce Petition based upon your original fact. A maximum 6 month period of reconciliation is allowed. This can be separate periods adding up to 6 months or one continuous period.
If reconciliation for a longer period takes place then any behaviour or adultery relied upon becomes stale. If the Divorce Petition is based upon 2 years' separation then the period of reconciliation must be added to the total period of separation. |
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THE STATEMENT OF ARRANGEMENTS FOR CHILDREN.
If you have children you will have to complete The Statement of Arrangements for Children form giving full details about the children and their lives, where they will live, where they go to school, how often they see the non-resident parent, whether they have any special needs etc.
This completed form has to be filed with the Divorce Petition. There is a section for your spouse to sign confirming that he/she agrees with the arrangements. If he/she does not agree he/she can file his/her own form, or letter, or make a separate application to the court to consider the issues relating to the children.
If agreement is not reached it does not prevent the divorce from proceeding. |
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WILL WE NEED TO FINALISE FINANCIAL ISSUES FIRST?
No, the Divorce Proceedings are a separate legal action from the finances. However, it may be advisable not to finalise the divorce until the finances are sorted out, depending upon your individual circumstances. Sometimes, as a practical step, the application for DECREE ABSOLUTE is delayed until the financial issues are resolved. This would apply where the couple wish to retain the benefits they would receive on the premature death of the other, for example via a life insurance policy or a pension scheme, pending completion of the financial matters. Divorce can affect National Insurance Contributions, rights under your spouse’s will and protection of your rights of occupation of the family home if it is not owned in joint names. There may also be tax implications in the timing of the DECREE ABSOLUTE. |
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CAN ANYONE FIND OUT THE DETAILS OF MY DIVORCE?
Court proceedings in Family Law are usually private. This means that the public and press are not allowed to see the Court papers. An exception is the pronouncement of the DECREE NISI. Therefore, the press is able to publish the fact that a divorce has been pronounced. The information they can disclose is very limited. They may reveal the fact relied upon to obtain the divorce but not the details. |
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WHAT ARE THE COSTS? The Court costs are as follows:
1. Filing Divorce Petition £300.00
2. Applying for DECREE ABSOLUTE £40.00 You may be eligible for exemption from these fees if you are on a low income.
Legal fees vary depending on whether your solicitor operates on a fixed fee or time charging basis. They also vary geographically, with fees in and around London being more expensive. However, your solicitor should be able to give you an estimate of his/her costs at the start and should regularly update it.
We are able to deal with your divorce from a FIXED FEE OF £395.00 PLUS VAT PLUS DISBURSEMENTS, provided the matter remains undefended. Full details are available in our client care letter. Please refer to FIXED FEE DIVORCE for further information. |
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