Divorce

Divorce is often an extremely difficult and stressful time for the whole family. We would strongly recommend that before you embark on Court proceedings of any type you should firstly seek independent expert legal advice. Tynan Solicitors aim to make your divorce as easy and stress free as possible. As members of Resolution (formally SFLA) we are committed to handling matters in a conciliatory way to minimize the stresses associated with the breakdown of the relationship. We can handle your divorce from start to finish or simply assist you with initial advice to get you on your way or when things get difficult. Please feel free to email or call us to book a free ½ hour initial consultation.

The following pages contain a brief explanation of the legal process in obtaining a divorce. They are not intended to replace the need for expert legal advice but should give you an idea of the process and what to expect whether you are starting your divorce or are involved within divorce proceedings.

Divorce Procedure:

Read on to find out the steps that need to be followed to start and conclude a divorce:

1. Applying for a divorce

The first step that must be taken is making the decision that the marriage is at an end and a divorce is what you want. Either party to the marriage can apply to the Court for a divorce.

Once you have decided that you want to proceed with a divorce you will need to make an application to a County Court or the Principal Registry in London. The application is called the divorce petition. The party making the application is called the Petitioner and the other party the Respondent. Sometimes there will also be another party called a Co-Respondent. There will only be a Co-Respondent if you chose to rely on your partner's adultery and name the person with whom he/she committed adultery with. The Court has strict rules about Co-Respondents and largely discourages their involvement within divorce proceedings. You should think carefully about pursuing this route which could complicate and lengthen the divorce process. If you are unsure about what to do you should seek independent expert legal advice.

Before making your application to the Court for a divorce you must ensure that the Courts in England and Wales have jurisdiction to deal with your divorce. If the Petitioner and Respondent both live and have permanent homes in England and Wales the Courts will have jurisdiction to consider the petition. If you and/or your partner no longer reside or live permanently within England and Wales there may be jurisdictional issues and you should seek independent expert legal advice before starting Court proceedings.

2. Petitioning to the Court (making the application)

The only ground for divorce in England and Wales is the irretrievable breakdown of the marriage. This must be supported by one of five facts which are:

• 1. Adultery committed by the Respondent and the Petitioner finds it intolerable to live with the Respondent.
• 2. Behaviour of the Respondent which the Petitioner cannot reasonably be expected to live with the Respondent. (Sometimes known as ‘Unreasonable Behaviour')
• 3. Desertion of the Petitioner by the Respondent for a period of 2 years.
• 4. Separation for 2 years and the parties consent to the divorce.
• 5. Separation for 5 years.

The Petition must follow the Court's specific format and clearly set out the ground for divorce and the fact you are relying on. There is other important information that the Court requires including where the Petitioner and Respondent live, when the parties separated and whether there are any children of the family.

If you are seeking to claim any costs associated with the divorce from your spouse or a Co-Respondent then this must be clearly stated within your petition. This is referred to as a prayer for costs. If you do not include this request within your petition it is not possible to make a later claim once the divorce has been granted.

If you are unsure as to whether you have followed the correct format or need help drafting the petition you should seek independent expert legal advice.

Once your petition is ready you may wish to firstly send a copy to your spouse for his/her consideration and seek agreement that the petition should be sent to the Court. It is always best to co-operate with each other to try and obtain your divorce by agreement, this will ensure that your divorce runs as smoothly and quickly as possible.

The next step is to send your Petition to the Court. In addition you will need to send the Court sufficient copies of the Petition to be served on the Respondent and any Co-Respondent. If you have any children you will need to complete a form called the Statement of Arrangements for Children. This sets out the plans for the children, for example where they will live, who they will live with and the contact with the other parent. This form will need to be sent to the Court with the Petition and the original (or certified copy) of the marriage certificate. You will also need to send payment of the Court fee. This is currently set at £300. There are some circumstances where you may be eligible for exemption or reduction of the Court fee.

Once you have sent all the required documentation to the Court they will be checked over by the Court staff and processed. If everything is in order the Court will issue the Petition. This means that the petition and other documents will be stamped to show that the Court fee has been paid and the divorce will be given a case number. The Court will send the Petitioner a Notice of Issue of Petition, stating that the Petition has been issued and a copy of the Petition has been sent to the Respondent.

3. What happens after the Court has sent the Respondent the Petition?

The Court will send the Respondent by post a copy of the petition, Statement of Arrangements for Children, notice of the proceedings and an Acknowledgement of Service form. This is known as serving the Respondent with the divorce proceedings.

The Respondent should return the Acknowledgement of Service form to the Court within 7 days of the date of service. On this form the Respondent will need to indicate whether he/she intends to defend the divorce, whether he/she agrees with the Statement of Arrangements for Children and if relevant whether he/she agrees to pay the Petitioner's costs of the divorce and if not, why not.

If the Respondent does not agree with the Petitioner about the plans for the children or paying the costs of the divorce the Court will determine those matters separately.

There may be problems effecting service if the Respondent does not return the Acknowledgement of Service form to the Court. If this happens then it may be necessary to consider using the Court bailiff or a process server to personally serve the Respondent with the divorce papers. You may wish to obtain independent legal advice if you experience problems with your spouse returning the Acknowledgment of Service Form.

4. The Respondent has completed the Acknowledgement of Service but states that he/she wishes to defend the divorce. What happens now?

If the Respondent wishes to defend the divorce then he/she must file an Answer with the Court within 28 days from the date he/she received the petition. The Answer must set out the reasons why the divorce is defended. It is very rare these days to have a defended divorce. If the Respondent fails to file an Answer within the 28 day period then the Petitioner can proceed with the divorce using the undefended procedure set out below. If the Respondent files an Answer then the procedure becomes much more complex and it would be advisable to seek independent expert legal advice.

5. The Respondent has completed the Acknowledgement of Service and does not intend to defend the divorce. What happens now?

Once the Respondent has competed the Acknowledgement of Service form and sent it back to the Court, the Court will send the Petitioner a copy. If the Respondent does not intend to defend the divorce the Petitioner must complete an Affidavit. This is a sworn statement which confirms or alters the contents of the petition. It must be 100% accurate. The statement must follow a specific format and must be signed by the Petitioner in front of a Solicitor or Officer of the Court. There will be a small fee involved to have your signature witnessed under oath (currently £5 for the Affidavit and £2 for any additional exhibits). The Respondent's completed Acknowledgement of Service is exhibited to the Petitioner's Affidavit.

Once the Affidavit is complete it will need to be sent to the Court with a request for Directions for Trial. This is simply asking the Court to process your divorce.

The District Judge will check the petition, Statement of Arrangements for Children, Marriage Certificate, Affidavit and the Respondent's Acknowledgement of Service to ensure that everything is in order. The District Judge needs to make sure that the Petitioner has shown that he/she is entitled to a divorce. If satisfied that the Petitioner is entitled to a divorce the Judge will issue a Certificate of Entitlement to a Decree and fix a date for pronouncement of Decree Nisi.

If the Judge is not satisfied that the Petitioner has shown that he/she is entitled to a divorce, the Petitioner will be directed by the Judge to file further evidence to support his/her case that the marriage has irretrievably broken down with proof of one of the five facts.

At this stage the Judge will also consider the Statement of Arrangements for Children. If the Judge is not satisfied with the arrangements for the children he/she may direct that the Petitioner file further evidence or that the Court should consider the arrangements. In very rare scenarios the Judge may direct the preparation of a welfare report by CAFCASS to further consider the arrangements for the children. If the Judge is satisfied with the arrangements he/she will certify that the Court does not need to exercise its powers in relation to the children and send the parties a Section 41 Certificate.

6. The Court has listed a date for pronouncement of Decree Nisi. What does this mean and what happens once I have it?

Once the Court is satisfied that the Petitioner is entitled to a divorce a date will be listed for Decree Nisi to be pronounced in open Court. This means that on that specific date the District Judge will sit in Court and certify that the marriage has irretrievably broken down and proved by one of the five facts. Neither the Petitioner nor the Respondent needs to attend Court for the pronouncement unless there is an issue about payment of costs. The Decree will be sent to both parties by the Court.

A Decree Nisi does not mean that you are divorced. It is only the first of the two Decrees and you must wait six weeks and one day after Decree Nisi before the Petitioner is entitled to request the Court to make the Decree Absolute. The Petitioner will need to submit an application to the Court for Decree Nisi to be made Absolute. There is a small Court fee for this application (currently set at £40).

The Petitioner and Respondent should both be advised to seek independent legal advice on financial orders before applying for Decree Absolute as in some situations this may effect his/her right to claim for certain financial orders.

If the Petitioner does not apply for the Decree Absolute, the Respondent may apply for this after a further 3 months. There are various situations where the Court may not grant an application for Decree Absolute by a Respondent. If you are a Respondent and considering making an application for Decree Absolute you may wish to check that you are entitled to do so.

Once the Petitioner or Respondent has made an application to the Court for Decree Absolute the Judge will check the application and make sure that the final Decree can be made. The parties are not required to attend Court for the Decree Absolute and the Court will simply send the final Decree to both parties in the post.

Once the Court has made the Decree Absolute the Petitioner and Respondent are officially divorced and free to re-marry or form a civil partnership.

7. How long should a divorce take?

The length of time for a divorce varies from case to case depending on the individual facts. A straight forward divorce generally takes between 4-6 months from start to finish. If there are financial issues that need to be resolved within your divorce then the application for Decree Absolute may be postponed until these are finalised. Please use the link below to obtain further information on financial matters on divorce. If your divorce is contested or the Respondent does not co-operate then the process will take longer.

8. How much is a divorce going to cost?

The cost of a divorce varies from case to case. In every divorce there will be the Court fees, unless you are exempt from paying or entitled to a reduction. The cost for issuing a divorce is currently £300 and the application for Decree Absolute £40. You will also have a small cost to have your Affidavit sworn (Between £5-10).

Should you wish Tynan Solicitors to handle your divorce we would ask you to contact us by telephone or email to discuss a tailor-made package to suit your needs and your budget.

If you need expert legal advice from a family law specialist please call or email us to book a free ½ hour consultation.