Divorce

DIVORCE PROCEDURE (INCLUDING CHANGES INTRODUCED ON 6 APRIL 2011)

The purpose of this article is to summarise the procedure which is followed in divorce proceedings. The new Family Proceedings Rules 2011 (“the new rules”) , which came into effect on 7 April, introduced a number a number of changes which will be identified in the summary below.

Divorce proceedings may be commenced by either party to the marriage, once one year has elapsed from the date of the marriage.  There is only one ground for divorce, namely that the marriage has irretrievably broken down.  However, a divorce will only be granted if one of five facts proving irretrievable breakdown are established.  The process is commenced by the issuing at court of a divorce petition.  The person who issues the petition is called “the Petitioner”, and the other party is called “the Respondent”

The five facts are as follows:

(A)   That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.  Under the new rules, the other person should not be named in the Petition unless the Petitioner believes that the Respondent is likely to object to the making of a “matrimonial order” (a term introduced by the new rules and which encompasses a decree nisi and decree absolute of divorce).

(B)   That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to continue to live with the Respondent.

(C)   That the Respondent has deserted the Petitioner for a continuous period of two years or more.

(D)  That the Petitioner and Respondent have been living separately for two years or more and the Respondent agrees to a divorce proceeding.

(E)   That the Petitioner and the Respondent have been living separately for five years or more.

Law Society Protocol

Before the Petitioner issues proceedings, under the Law Society Family Law Protocol it is necessary to seek to agree with the Respondent the content of the divorce petition, unless there is a good reason not to do so.

Starting Divorce Proceedings

In order to commence proceedings, the Petitioner needs to send to the court a divorce petition and, if there are children, a document called a “Statement of Arrangements”.  The Statement of Arrangements sets out the proposed arrangements for the children.  The documents are sent with the court fee to the court, whereupon the court will proceed to issue the papers for service upon the Respondent.  The divorce petition itself is in a standard form, which includes information required by rules of court.

The Respondent’s Acknowledgment

Upon receiving the divorce papers, the Respondent must file an Acknowledgment of Service form within seven days of the date of receiving the paper work.  The form asks whether the Respondent intends to defend the divorce petition, whether any claim for costs are disputed and whether orders affecting children are sought.  Whether or not an acknowledgment has been filed, the Respondent must, if he or she intends to defend the petition, file a document called an “answer”.  The petition then becomes defended and the procedure outlined below does not apply.  Defended divorce proceedings resulting in fully contested hearings are very rare.

Petitioner’s affidavit

Upon receiving the Respondent’s Acknowledgment of Service form, the Petitioner files at court a sworn affidavit verifying the contents of the petition.  This is effectively the Petitioner’s application for decree nisi, which is the first stage in the divorce process.  Pronouncement of the decree nisi does not mean that the parties are divorced, but it is a significant step on the way to the final decree, the decree absolute.

Decree Nisi

The court will consider the Petitioner’s affidavit and, if everything is in order, notify the parties of the date for the pronouncement of decree nisi.  Depending on the court’s diary, the date is likely to be a few weeks after the application is lodged.  Neither party need attend court unless they wish to.  In practice is it very rare for either party to attend court for the pronouncement of decree nisi.

Decree Absolute

The Petitioner is able to apply for the final stage of the divorce, the decree absolute, once six weeks has elapsed from the date of decree nisi.  This is done by sending to the court a simple application form and the court fee. The decree absolute will then be pronounced by the court shortly afterwards.

The Respondent may apply for decree absolute once three months have elapsed from the date that the Petitioner could first have done so i.e. six weeks plus three months from the date of decree nisi.  Such an application must be served on the Petitioner who may object, for example, if the financial aspects of the divorce have not yet been resolved.  Such an objection is particularly common where the Respondent has a pension – the Petitioner will usually wish to preserve any widows/widowers benefits available under the pension until a financial order has been agreed, and such benefits are usually lost upon decree absolute.