What is the court process for divorce? - Family Law Partners

What is the court process for divorce?

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As I explained in my earlier blog on the subject of a financial order in a divorce petition, taking the emotions of any separation out of the equation, the divorce process itself is fairly administrative in nature.

We advise that separating couples take advice early on, meaning that you know what to expect and so that you can plan for, and understand, the process.  In this piece I explain the key aspects of the divorce process.

What is the legal process for a divorce?

In the jurisdiction of England and Wales, the legal requirements for divorce are that in order to start divorce proceedings, you will need to show that you have been married for one year or more.

The only ground for divorce is that of the ‘irretrievable breakdown of the marriage which is then evidence by one of five facts. 3 of the 5 facts are time dependent, and the other 2 are behavioural. The five facts are: –

  • Adultery
  • Unreasonable behaviour – that your spouse has behaved in such a way that you can no longer be expected to live with them
  • Two years separation with the consent of the other party
  • Desertion – that your spouse has deserted you for at least two years
  • Five years separation for which no consent is sought

The divorce process broken down

It is helpful to think about the divorce process in four key stages:

Stage 1 – Petition

The divorce process is started by the petitioner who presents a divorce petition to the court. This document sets out details such as the names of the parties (i.e., the petitioner and the respondent), addresses, details of the marriage and fact being relied upon. Once the divorce petition has been drafted it is best practice, often subject to any jurisdictional issues, to agree the content of the divorce petition with the other side. I often find that agreeing the divorce petition sets the tone for any future deliberations, and it is often far better to start off on an agreed basis. Once in an agreed form, it is sent to the court.

The divorce petition is then reviewed, issued, and the case is assigned a unique case number.

Stage 2 – Acknowledgement of Service

When the respondent receives the issued divorce petition, they are sent an Acknowledgement of Service form to fill in. This form is relatively simple to complete. It asks questions like – when did you receive the divorce petition and to what address, whether you agree to contributing towards the petitioner’s costs of the divorce suit (separate to finances), and whether you intend on defending the divorce. More often than not, divorce petitions proceed on an undefended basis. If the respondent does not return this form, for which it is meant to be returned in 7 days, then you can arrange for personal service, or for it to be serve by a court bailiff.

Stage 3 – decree nisi

This is commonly referred to as the first divorce order and an important stage in the court process. Without decree nisi the court cannot make a financial. At this stage, the court will check the divorce papers, for example if the marriage has taken place abroad is there a certified marriage certificate. If the court are happy they will send to the parties a Certificate of Entitlement to a decree nisi, and list a hearing date for decree nisi. There is no requirement to attend this hearing, although some times parties decide to attend if, for example, there is an issue on divorce costs. It is important to remember that decree nisi is the first divorce order and it does not mean that the parties are divorce.

Stage 4 – decree absolute

Six weeks and one day after decree nisi is granted, the petitioner can apply for decree absolute which is the final divorce order bringing the marriage to an end. If you are the respondent you can apply for decree absolute but only three months following the earliest date on which the petitioner could have applied for decree absolute.

Typically decree absolute is not applied for until there is a sealed financial order.

Distinguish between financial and children proceedings

Every divorce solicitor at Family Law Partners is a member of Resolution and we are committed to resolving matters in a way that adheres to their Code of Conduct. The Code of Conduct makes it clear that we should deal with financial and children matters separately. This is the approach which is also adopted by the courts. There can, however, be overlaps between financial and children proceedings. Issues which arise in respect of children can impact the finances. For example, the number of nights a child/or children spend with a one parent will impact child maintenance payments. In turn this has an effect on income needs both for both parents.

One of the main areas where we see overlap is where one party wishes, or needs, to relocate – particularly where that relocation is international. In those situations, housing needs are key as their housing needs in this jurisdiction may well look very different in another jurisdiction. In these circumstances it can often be the case that financial proceedings have to be stayed pending the outcome of any leave to remove proceedings.

These two key principles may be helpful to keep in mind for separating couples whose divorce involves both finance and child-related matters:

  • Keeping correspondence separate also reduces animosity and helps parties to distinguish between the two.
  • Children arrangements are focused on the need of each child. Children are individual and what their needs are should not be blurred with finances.

How we encourage an alternative way

At Family Law Partners we focus on minimising the emotional and financial cost for you and your family and we have a very strong emphasis on alternative dispute resolution. There are many alternatives to court, and we will help you determine which is the route right for you to take. The divorce process itself is relatively straight forward, but it is the wider issues such as financial arrangements, or arrangements for children, where emotions are often heightened. We work with our clients to understand their needs and to ascertain what their goals and objectives are. Lawyers have to be more fluid in their approach and adopt different methods to account for the needs of not only their client, but the wider family. The court experience is quite often not a pleasant one. Not only is it costly and emotional, but the delays can be quite significant and the process is therefore more drawn out than it may otherwise need to be.

Rachel Nicholl is a Senior Associate Solicitor and Collaborative Lawyer in our Horsham team.

If you would like any further information on financial issue and divorce, then please do not hesitate to contact a member of the team for a confidential discussion about your personal circumstances.

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