Who can start divorce proceedings
When the couple have been married at least one full year and one or both have lived in England or Wales (Scotland have their own rules) for the preceding 6 months? It does not matter where the marriage took place
The five reasons for a divorce are: –
- Adultery
- Unreasonable behaviour
- Desertion (minimum 2 years applies)
- Separate lives, essentially where you have not lived together for the last 2 years and both sides agree to the divorce
- Separate lives, essentially where you have not lived together for the last 5 years, this would then apply whether the husband/wife agrees or not.
The petition
These generally follow a similar pattern where the reasons are simply filled in, however it may include sections such as what is to happen to child access, property, funds and so on.
Children
If children are involved the court will request a form (known as a “Statement of Arrangements”) to be completed, this details to the court. It is always advisable to agree on terms with the person you wish to divorce beforehand. Sadly, children are generally the innocent parties but are used to effectively punish the other side. We politely suggest that the parties consider how the divorce will affect their children and involve them in deciding what arrangements they would think fair.
Money
Dealing with financial settlements should ideally be done at the earliest stages, however, this is not always the case. For more complex divorces, or when one side is being particularly unreasonable then matters can drag on for years. The decree absolute can be delayed until the financial issues have been settled.
After being served with divorce papers
Once the court papers arrive, they will consist of three parts: –
Part 1 – The petition itself
Part 2 – An Acknowledgement of service form, and
Part 3 – A statement of arrangements
We appreciate that this news can be very emotionally difficult as they may be in shock of the application itself, in short, they may come as a surprise. It is at this point that we would suggest that you protect your entitlement to assets, child access and so on by commissioning professional legal advice. We would be honoured to assist you in this matter.
The recipient of the papers is referred to as the “Respondent”, if the reason for the divorce is adultery then the other parties involved will also be sent the papers, these persons are referred to as ‘Co-Respondents’.
Timescales
Within 8 days – The respondent has to confirm to the court that they have received the papers (this is via the ‘Acknowledgement of Service’ form). The form asks the Respondent whether they intend to defend the petition, whether any claim for costs is disputed and whether orders affecting the children are to be sought.
Within 29 days – (Note this may be extended if the papers are sent outside the UK), the respondent would accept the situation as offered or file a defence. The divorce is then classed as being “Defended”
If no response is received (there have been instances where the petitioner has taken their other half on a nice long holiday while the papers wait in the doormat) then proof that the respondent has received the petition must be proven before the petitioner can proceed with the divorce. Usually, such papers are hand delivered, and a signature obtained.
Once the court receives the papers from the Respondent, they are passed on to the Petitioner to consider. If the divorce is not being defended then it is considered settled and the petitioner can request to the court that a Decree Nisi (first degree of divorce) be pronounced, the judge will set a date for this to take effect, this is generally an administrational duty, neither party are required to attend court.
What is an “Annulment”
This is when the marriage itself was not legal, such as if one party was still married (or in a civil partnership) at the time, they were related, one of them was drunk, the bride was pregnant with someone else’s child, the person conducting the ceremony was not properly licensed to do so.
Types of divorce
The result of every successful divorce is that you are no longer married, there are three types of divorce: –
- No-fault
- Uncontested divorce
- Defended divorce
No-fault divorce
The Divorce, Dissolution and Separation Act 2020 is set to incorporate this type of divorce, at the time of writing (June 2020) the final points were being agreed upon. As the description infers it’s just when there has been an irretrievable breakdown of a marriage and both sides agree it is best to go their separate ways, here both sides simply make a statement to that effect and file a petition with the court. It takes at least six months for such a divorce to be granted. For the attest update on no-fault divorces please see www.lawsociety.org.uk
Uncontested divorce
Again, as the name implies it is when both sides have amicably reached a fair solution before filing the petition, this implies things greatly for all concerned and is especially useful when there are limited funds to pay for professional legal advice.
Defended Divorce
As previously detailed, this is when one side does not accept the other stance and the matter needs court intervention. This is when matters can get very congested, often ending up with significant legal costs.
How we can help
Lestons have specialists who deal solely with divorce matter and we would be delighted to assist in the proceedings if requested.
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