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Divorce

Divorce is never undertaken lightly and, even when both parties are in agreement; it can be a stressful time. With expert advice the process of ending a marriage can be achieved as simply and swiftly as possible allowing you to get on with your life.

Application for Divorce: The application for divorce is called a Petition and either party can apply to the Courts for this. The person who applies for the divorce is called the Petitioner and the other party the Respondent. Co-Respondents are any other party involved or cited in the application but the involvement of Co-respondents in the process is actively discouraged by Court rules. Once the petition is drawn up it will usually be sent to the petitioner's local County Court.

Issuing a Petition: Before issuing a Divorce Petition one or both of the parties must be certain that the marriage has irretrievably broken down. To support the claim of irretrievable breakdown the petitioner must rely on one of five facts, having grown apart is not sufficient grounds for divorce. The facts to rely on are:

  • Adultery: Where the respondents adultery makes it intolerable for the petitioner to remain living with them. If the petitioner is to rely on this argument they must do so within 6 months of finding out about the adultery. 
  • Unreasonable Behaviour: Where the respondent’s behaviour is such that the petitioner finds living with them intolerable.
  • Desertion: The respondent must have deserted the petitioner for a minimum of two years. This fact very rarely relied upon as grounds for divorce.
  • Separation: Where the parties have been separated for 2 years or more and agree to divorce.
  • Separation: Where the parties have been separated for 5 years or more.

The Petition should also include information such as where each party is living and whether the couple have any children.

Documents required:
The following documents must be sent to the Court with the petition:

  • A Statement of Arrangements - for any children of the family, setting out plans for where they will live and with whom, contact with the other parent and their schooling arrangements.
  • The Marriage Certificate.
  • The Court Fee (currently £410.00)

Once the Court has received all the documents they will check them and then issue them with the petition, after stamping it to show that the fee has been paid and the Court file has been opened.

Service on the Respondent: Service is the term for providing the Respondent, and any other relevant party, with various documents as follows:

  • The Petition.
  • The Statement of Arrangements – Only the Respondent will receive this.
  • Notice of Proceedings.
  • Acknowledgement of Service – This is in the form of a questionnaire which the Respondent must complete and return to show that they have received the petition.

The above documentation will be posted to either the respondent or their solicitor if they have instructed one. Whilst the Petitioner cannot serve the Respondent themselves, it may be done by a Court bailiff or process server. In the event of a problem carrying out the service the Court may decide that everything possible has been done and proceed without service.

Acknowledgement of Service: The Acknowledgement of Service must be completed and returned by the Respondent within 8 days of the date on which it was served and show whether:

  • They intend to defend the divorce.
  • They agree with the Statement of Arrangements for the children and, if not, set out alternative arrangements.
  • State whether they agree to pay the costs of the divorce and if not provide a reason.

In the event that the Respondent disagrees with the plans for the children, the financial arrangements or the costs, the Court will consider these separately.

Undefended Divorce: In the vast majority of cases a divorce will be undefended and the respondent will not raise any objections or counter allegations and does not oppose the divorce. Accordingly, an Affidavit (sworn statement) is then prepared by the Petitioner to confirm the factual content of the Petition. The Affidavit must be signed in the presence of a solicitor (a small fee will be charged for this) and the signed acknowledgement of service is then normally attached to it. The Affidavit is sent to the Court along with the request for directions (the document which asks the court to process the divorce) to be processed. The processing is done by the District Judge who checks that all the required steps have been followed and that the Petitioner has proved that they are entitled to a divorce.

The Judge, if satisfied, will issue a certificate of entitlement to a decree or order. If however, he is not satisfied he will give the Petitioner the chance to submit further evidence. Although it is highly unusual for the Judge to request further evidence, he is unable to grant a divorce without proof of one of the five facts listed previously which support the irretrievable breakdown of the marriage.

At this time arrangements for any children will be considered by the District Judge. If both parties agree with the statement it is unlikely that the court will challenge them however if they are not agreed then the Petitioner and Respondent may be required to attend Court to explain the areas of disagreement.

Once the Judge has certified entitlement to a divorce a date for the pronouncement of Decree Nisi in open Court is arranged.

Answer (Divorce is Defended): Should the Respondent wish to defend the divorce they must file an Answer with the Court within 29 days of their receipt of the Petition. The Answer is only necessary if the divorce is being defended.

Decree Nisi:
This is the decree that shows that the divorce has been proved and is the first of two that are required for divorce. It is pronounced on the date fixed and it is not necessary for either party to attend.

Decree Absolute:
The Decree Absolute is carried out by the Court and again, neither party need attend. As soon as this has been made the couple are divorced and free to marry again.

The Decree Absolute can be applied for by the Petitioner six weeks after the Decree Nisi has been granted but must submit a request for this on a standard form which is available from the Court.

The Respondent is only allowed to apply for the Decree Absolute a further 3 months later, 4½ months from the Decree Nisi being pronounced. The Respondents application will be granted by the court unless there is a good reason not to, for instance, if there are unresolved financial issues which would cause severe hardship.

Applications for Decree Absolute made over 12 months after the Decree Nisi will require an explanation being made for the delay to the District Judge.

Other Matters:
The certificate making Decree Absolute contains a caution that divorce affects inheritance under a Will and it is therefore important that both parties make new Wills and that provision is made regarding the care of any children in the event of the death of either one or both parents.

Payment of Costs: If the reason for the divorce is due to adultery or unreasonable behaviour then an application will usually be made that the Respondent pays the costs of the divorce. Regardless of this, the Petitioner is responsible for the financial element of the divorce.

Feel free to contact our offices on 0845 458 6291 or email us at info@averyknights.com; whatever the nature of your query we will be more than happy to assist.