Transcript of "Family legal aspects of divorce procedure"
Legal Aspects of Divorce Procedure
Introduction ‐ The mechanics of obtaining a divorce nowadays are usually quite straightforward ‐ particularly if both partners feel that the marriage is over. The difficulties tend to lie rather in resolving the related practical issues stemming from divorce ‐ how to separate, where to live, arrangements over the children and money matters generally. Your attention will be concentrated on those related issues and the process of actually getting the decree may seem blurred. The purpose of this leaflet is to set out a broad framework of the process to highlight key points and to set out the sort of timetable to expect. Who can file a divorce petition? Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. It does not matter where the marriage originally took place. Can I file a petition based on ‘irretrievable breakdown’? Yes ‐ in fact this is the only ground for divorce now, but there is a complication. This is that a divorce will only be granted if you can establish one of five facts, laid down by law, evidencing irretrievable breakdown. Those five facts are: (a) Your spouse has committed adultery and you find it intolerable to go on living together. (b) Your spouse has behaved in such a way that it would be unreasonable to expect you to go on living together. (c) Your spouse has deserted you for a continuous period of two years or more. (d) You and your spouse have been living separately for two years or more and your spouse agrees to the divorce. (e) You and your spouse have been living separately for five years or more, whether or not your spouse consents to the divorce. If I think my marriage is irretrievably over and that one of the five facts applies what happens next? This will depend upon your particular circumstances, but it is often a good idea to try and obtain your spouses prior consent to a petition being filed. Your solicitor may be able to reach agreement over the form the petition should take. For example, if your spouse accepts that you should file a petition based on behaviour, only a brief outline of the particular behaviour need be given. Not saying all that might be said will not prejudice you in any way. What does the petition actually look like? Every petition follows the same form, containing basic information about names, addresses, ages of children etc., and the first ten or so paragraphs simply follow a set pattern. What is in the paragraph dealing with the "fact" evidencing the irretrievable breakdown depends upon which fact is in question and whether your spouse has agreed in advance to the petition going ahead. The "prayer" setting out your request for a divorce and notifying your wishes to make claims in respect of finance is also in What about the Children? In the past the commonest pattern was for one parent to have "custody" of the children (which was really a shorthand for custody, care and control) and for the other to have an order for "reasonable access". Sometimes care and control and access were shared under the umbrella of a "joint custody" order. Since the Children Act 1989 came into force on 14 October 1991 the law has changed dramatically. Your solicitor will no longer discuss "custody" and "access", but "residence" and "contact" instead. Parents are encouraged under the Act to take responsibility themselves for sorting out the future arrangements for the children. Therefore, when the petition is filed, the petitioner also fills in quite a long form called the "statement of arrangements" which gives full details to the court about where the children are to live, who is to look after them, their schooling and any special needs which they may have. The respondent will either see the form before the petition is filed or will be sent a copy when the court office sends the petition out. In the majority of cases the respondent will be able to confirm that he/she agrees with the arrangements proposed. If that is the case, the court will not interfere and no court order for residence or contact will be made. It is only if the court is made aware of problems between the parties that the matter will be taken further. Are financial issues dealt with before the divorce decree is granted? Sometimes, but very often financial discussions will not have been completed by the time the decree absolute can be pronounced. If you are applying for public funding in respect of financial negotiations, your application will not be processed for some weeks. Your solicitor cannot take negotiations very far under Legal Help , but Legal Help will enable you to get assistance with the divorce procedure itself. It should be possible to resolve immediate problems and make interim maintenance arrangements in any event. Your solicitor will explain the possible financial effects of the pronouncement of the decree absolute ‐ for example, with regard to national insurance contributions, pension entitlement and protection of your rights of occupation in the matrimonial home if it is not in joint names.
TIMETABLE After one year of marriage ‐ Either spouse may file a divorce petition. He or she is referred to as “the petitioner”. The petition and statement of arrangements about the children are completed and then lodged at court. The statement of arrangements may have also been signed already by the respondent (see paragraph “What About the Children”) Within a few days unless a backlog of administrative work has built up at the court ‐ The court sends a copy of the petition and statement of arrangements to the other spouse and a copy of the petition to anyone named as co‐respondent in an adultery petition. If either party has instructed solicitors to accept service and the petitioners solicitor knows this, the documents will go to those solicitors instead. From the date the documents are received, the recipient (the Respondent) has strict time limits to observe WITHIN EIGHT DAYS ‐ He or she should file at court a form which accompanied the petition acknowledging its receipt. The form asks whether it is intended to defend the petition, whether any claim for costs is disputed and whether the respondent agrees with the proposals set out in the statement of arrangements. If not, he or she can file a written statement setting out his/her views on the present and proposed arrangements. WITHIN 29 DAYS OF RECEIPT (longer if the documents have to be sent to an address abroad) ‐ Whether or not an acknowledgement has been filed, the respondent must, if or she intends to defend the petition, file an answer. If this is done, the petition becomes "defended" and the procedure set out below does not apply. Defended divorce proceedings actually resulting in a full court case are very rare ‐ usually a compromise is reached ‐ but delay in obtaining decree absolute is inevitable. Within a few days of receiving acknowledgment of service from the Respondent and any Co‐Respondent The court send to the petitioners solicitor a copy of the form(s) of acknowledgement of service. If the respondent is not defending the petition, the petitioner can apply for decree nisi to be pronounced. If acknowledgements of service are not returned to the court, proof that the respondent and co‐respondent have been served will have to be obtained before the petitioner can take the next step. This may involve personal service or, exceptionally, obtaining a court order that service can be dispensed with. The petitioners solicitor prepares an affidavit for the petitioner to swear, confirming that the contents of the petition are true, if necessary evidencing the fact relied on in the petition ‐ for example, by exhibiting the acknowledgement of service signed by the respondent and admitting the alleged adultery. Certain other information must also be given, for example where each of the couple has lived since the last act of any behaviour referred to in the petition or since the petitioner first knew of the adultery referred to in the petition. This is because time limits apply to prevent old incidents being dredged up which the respondent could reasonably expect to be forgiven and forgotten. These possible time bars will have been checked when the petition was drafted. The petitioner will swear the affidavit before a solicitor or court official and it will then be filed at court with a request for decree nisi to be pronounced under the so‐called special procedure. On receipt by the Court of the Special Procedure application and affidavit A District Judge looks through the papers, and if they seem in order gives a certificate for decree nisi to be pronounced. Both the petitioner and the respondent (through their solicitors) are then advised of the date fixed for decree nisi. Depending on the courts diary the date is likely to be several weeks after the application was lodged. At the same time as checking the petition the district judge will also decide whether there are any problems relating to the children. The District Judge reads the statement of arrangements and decides in effect whether court intervention is necessary in relation to the children. If he decides that it is not necessary he will certify his satisfaction and nothing further will happen. You will not get an order as such for residence or contact. If the District Judge is not satisfied he may either order that further information is provided, or order that a welfare report be prepared, or order that the parties should attend court. If the dispute cannot be resolved a court hearing may have to take place before a County Court judge when orders for residence and/or contact will be made. Such cases are likely to be exceptional. Six weeks and one day after the date of decree nisi (provided there are no outstanding residence/contact problems to be resolved) The petitioner may apply for the decree to be made absolute. This is done by lodging the appropriate form at court. The decree may be processed as quickly as the next day. Three months after the Petitioner could first have applied for Decree Absolute The respondent may apply for decree absolute if the petitioner has not already done so.
Other publications you may find helpful ‐ • Dispute Resolution Options available to Clients • Separation, Divorce and Children • Children Matters • Cohabitation Disputes • Financial Issues • Making a Will • Unavoidable jargon Please contact us if you would like a copy of any of these