The Law

Before a couple can divorce they must have been married for over a year, but events occurring during this time can be used when petitioning for divorce.

The person who starts the divorce proceedings is known as “the Petitioner” and their spouse is called “the Respondent”.

There is one ground for divorce and that is that the marriage has broken down irretrievably.

To satisfy the Court that there has been an irretrievable breakdown the Petitioner must prove one of the following five facts:

(a) The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.

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

(c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.

(d) You have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a Decree being granted.

(e) You have lived apart for a continuous period of at least five years immediately before the start of the divorce.

“Adultery” is an act of sexual intercourse with a person of the opposite sex. Sexual relations short of intercourse or between two people of the same sex may constitute unreasonable behaviour instead. To be able to rely on adultery in a divorce petition, it must have happened in the six months before separation or at any time after separation. There is no need to name the person with whom the adultery took place or indeed to involve them in the Court proceedings but they may be named as a co-respondent.

The test for “behaviour” is subjective and it does not need to consist of extensive violence, drug or alcohol addiction or other extreme behaviour. A combination of less obvious behaviour can be sufficient. Often issues like working too much (or not working enough), showing too much (or too little) affection, combined with a number of other similar factors are used. Again, to be able to rely on an incidence or course of behaviour in a divorce petition, it must have happened in the six months before separation or at any time after separation.

The procedure

The Petition/Statement of Arrangements

The first step in divorce proceedings is the petition. The petition sets out the details of the Petitioner, the Respondent, their marriage and the Petitioner’s particulars of why they are seeking a divorce. The petitioner may also ask for costs from the Respondent.

If there are children of either of the parties, a Statement of Arrangements for the children should also be completed. This form contains information about the children, where they currently live and current contact arrangements etc, and proposed arrangements for the future.

It is good practice for the petition and Statement of Arrangements to be sent to the Respondent before it is issued by the court so that the contents can be agreed.

Acknowledgement of Service

Once the petition has been issued by the court, the court will send a copy to the Respondent with an Acknowledgement of Service form.

The Respondent must indicate on the form whether he intends to defend the petition and whether he is satisfied with the Statement of Arrangements for the children. This reply is not binding on the Respondent, and he/she may change his/her mind at a later stage.

In the event that the Respondent admits adultery or consents to a fact D petition he/she may do so on the Acknowledgement of Service form.

Issues with service

Once the Acknowledgement of Service is returned the divorce can proceed to the next stage, though sometimes service on the Respondent is tricky.

If the Respondent does not return the Acknowledgement of Service within 14 days, the Petitioner may apply for personal service of the petition, for the petition to be “deemed” served on the Respondent or for service on the Petitioner to be dispensed with.

Application for directions for trial

7 days after service has been facilitated, deemed or dispensed with, the petitioner may apply for directions for trial.

A request for directions must be filed with the court, along with an affidavit in support of the petition.

The affidavit is a sworn statement in which the petitioner confirms that the contents of the petition (and Statement of Arrangements form) are true, and that the parties have not cohabited since the issues relied on in the petition. Any evidence which backs up the petition can also be filed with the affidavit.

Special Procedure and District Judge’s certificate

Despite the misleading name, “Special Procedure” is actually the standard procedure for undefended divorces.

Once the request for directions and affidavit have been filed with the court, the case will be put on the “Special Procedure list” and a District Judge will consider whether the petitioner has proved his/her case.

If the Judge is satisfied that the Petitioner has, he/she will produce a certificate, known as a District Judge’s certificate, fix a date for Decree Nisi, consider the arrangements for the children and consider whether a costs order should be made.

Decree Nisi

The Decree Nisi is a conditional order and does not dissolve the marriage. The order will be read out in an open court on a specific day. The parties do not need to attend this hearing unless there is a costs dispute.

Decree Absolute

The Decree Absolute can be made 6 weeks and 1 day after the pronouncement of the Decree Nisi. There may be reasons to delay applying for the decree absolute; a pending financial claim or to preserve home rights.

The granting of the Decree Absolute is the final order and means that the marriage is dissolved.

If you need help with a divorce please contact Michelle Uppal on 020 7426 0400 or email Michelle at mu@milesandpartners.com