|
Family Law
- Divorce
People usually
have many questions about divorce and the following information
will provide some of the answers.
The information
is divided into the following sections:
1. Divorce
proceedings
2. The stages of a divorce and the length of time of proceedings
3. The financial implications of a divorce
4. When children are involved
1. Divorce Proceedings
* Who can start
divorce proceedings?
* On what grounds can a divorce petition be started?
* If your marriage has irretrievably broken down, and one of the
five reasons applies, what happens next?
* What information is included in the divorce petition?
* Will information on my divorce be made public?
Who can start
divorce proceedings?
Anyone who has been married for over a year provided the relevant
criteria on residency & domicile is met. During your first meeting,
a solicitor will check that you are eligible to commence proceedings.
On what grounds can a divorce petition be started?
A divorce will be granted if the marriage has irretrievably broken
down, and one of the following five reasons is established:
(a) Your spouse
has committed adultery and you find it intolerable to continue living
together.
(b) Your spouse
has behaved in such a way that it would be unreasonable to expect
you to continue living together.
(c) Your spouse
has deserted you for a continuous period of 2 years or more.
(d) You and
your spouse have been living separately for 2 years or more, and
your spouse agrees to the divorce.
(e) You and
your spouse have been living separately for 5 years or more, whether
or not your spouse consents to the divorce.
If your marriage has irretrievably broken down, and one of the five
reasons applies, what happens next?
You should seek
the advice of a solicitor who will explain more about divorce. If
you decide to start divorce proceedings, your solicitor will explain
that the first stage is to issue a divorce petition. It is often
sensible to try to obtain your spouses consent to the petition and
to try to reach agreement over the contents of the petition.
What information
is included in the divorce petition?
The divorce petition contains basic information about names, addresses,
ages of children and a statement that the marriage has irretrievably
broken down. It will also state the reason for the divorce.
The petition
will contain a section that will include a request for the divorce
to be granted. It may also include a request for an order relating
to any children; a claim regarding the costs of the divorce; and
an order for financial provision.
Will information on my divorce be made public?
Court proceedings concerning divorce are usually private, which
means the public and press are not allowed access to the Court papers.
However, the press are able to publish that a divorce has been pronounced.
The information they may disclose is very limited, so whilst they
may state the reason for the divorce they are not able to publish
details of the adultery or unreasonable behaviour.
2. Stages of a divorce & length of time of proceedings
People often ask how long a divorce will take but this is a very
difficult question to answer as so much depends on the circumstances
of the individuals involved.
There are however
some stages of a divorce which do have strict timetables:
* Stage 1 -
See a solicitor and start divorce proceedings
* Stage 2 - Court receives petition
* Stage 3 - Response of Respondent
* Stage 4 - Court receives ‘Acknowledgement of Service’
* Stage 5 - If the Respondent is not defending the petition, the
Petitioner can apply for a certificate of Entitlement to a decree
* Stage 6 - Court receives Decree Nisi
* Stage 7 - Arrangements for children
* Stage 8 - Decree Absolute
Stage 1 - See
a solicitor and start divorce proceedings
After one year of marriage either spouse may start the divorce provided
that one of the five reasons apply. The person who starts the divorce
is called ‘the Petitioner’ and the other party to the
divorce is called ‘the Respondent’. The divorce petition
and statement of arrangements about any children are completed and
sent to court with the marriage certificate and the requisite Court
fee of £180 or an application for exemption from the usual
court fee.
Stage 2 - Court receives petition
Within one to two weeks, the court will send a copy of the petition
and arrangements for the children to the Respondent. A copy of the
petition is also sent to anyone named in the adultery petition.
Stage 3 - Response of Respondent
a) Within 14
Days – the Respondent should send to Court a form called ‘Acknowledgement
of Service’. The form asks the Respondent whether they intend
to defend the petition, whether any claim for costs is
disputed and whether orders affecting any children are sought.
b) Within 28
of receipt (longer if the documents have been sent abroad) –
whether or not the Respondent has returned the ‘Acknowledgement
of Service’, the Respondent must, if they intend to defend
the petition, file a ‘Defence’ (called an Answer). The
petition then becomes defended and the procedure outlined below
does not apply. Defended divorce proceedings resulting in a fully
contested hearing are very rare, but will inevitably cause a delay
in proceedings.
c) If the Respondent
does not return the ‘Acknowledgement of Service’ –
then proof that the Respondent and any named Co-Respondent have
received the petition will have to be obtained before any further
steps are taken. This may involve arranging for someone to deliver
the petition to the Respondent and Co-Respondent personally, or
more rarely by obtaining a Court order that proof that the Respondent
and Co-Respondent received the petition is not needed. In some cases,
namely a divorce based upon two years separation, no further progress
can be made unless and until the Respondent returns the acknowledgement
form consenting to the divorce. Personal service of the petition
would not therefore assist in this type of case.
Stage 4 - Court receives ‘Acknowledgement of Service’
The Court will send a copy of the form(s) of ‘Acknowledgement
Service’ to the Petitioner’s solicitor.
Stage 5 - If the Respondent is not defending the petition, the Petitioner
can apply for a certificate of Entitlement to a decree
The Petitioner’s solicitor prepares an Affidavit for the Petitioner
to swear confirming that the contents of the petition are true.
It will also state whether the circumstances (including those relating
to any children) have changed since the filing of the petition.
The Petitioner will swear the Affidavit before a solicitor or Court
Official and it will then be sent to the Court with a request for
a date for the first decree of divorce (Decree Nisi) to be pronounced.
Stage 6. Court receives Decree Nisi
The District Judge looks through the papers and, if they seem in
order, will give a certificate for the Decree Nisi to be pronounced.
Both the Petitioner and Respondent (through their solicitors) are
then advised of the date fixed for the Decree Nisi. Depending on
the Court’s diary, the date is likely to be a few weeks after
the application is lodged. The couple will not have to attend court.
Stage 7 - Arrangements for children
If both parties have made an agreement regarding their children
then the District Judge is unlikely to interfere. If an agreement
concerning the children has not been reached, then the District
Judge may ask the Petitioner and Respondent (accompanied by their
solicitors if necessary or appropriate) to attend an informal appointment
to discuss a solution. The District Judge may also ask for a Court
Welfare Officer to become involved. If a solution cannot be reached,
this will delay the application for the final decree of the divorce.
Stage 8 - Decree Absolute
a) 6 weeks
and 1 day after the date of the Decree Nisi the Petitioner may apply
for the final decree (Decree Absolute) by sending the appropriate
form to the Court. This step is not automatic. This Decree will
be processed and may even be available on the same day. There is
usually a Court fee of £30 to be paid upon applying for decree
absolute although we will advise you as to whether you may be exempt
from paying the fee.
b) If more
than 3 months after the Petitioner could first have applied for
Decree Absolute has passed, the Respondent may apply for the Decree
Absolute if the Petitioner has not already done so.
3. The Financial Implications of Divorce
Probably one
of the biggest concerns when you are considering separating or divorce
are the financial implications. This can be a major point of discussion
during the divorce itself, and it is important to keep discussions
over finances separate from those regarding the arrangements of
your children.
The sorting
out of the financial matters, if dealt with by the Court, is called
‘ancillary proceedings’. The law relating to this area
is quite flexible, and allows the Courts to look at each individual
case and decide accordingly on the financial settlement.
* Do I need
to appoint a solicitor?
* If it goes to Court, what factors do they take into account?
* Do I have to tell my partner about all my assets?
* Are financial issues dealt with before the divorce is finalised?
* What happens to the house?
* What is maintenance?
* What about pensions?
Do I need to
appoint a solicitor?
You will generally need to instruct a solicitor to act on your behalf
but if matters can be settled without the need to go to Court, it
will generally be better for the parties involved, and certainly
less expensive. Your solicitor will negotiate the situation on your
behalf with your partner’s solicitor and keep you regularly
updated.
Even if you
have come to an informal agreement with your spouse, we strongly
recommend you ask a solicitor to check the agreement. You could
be putting yourself in a vulnerable position, and remember that
both your circumstances could change in the future.
If it goes to Court, what factors do they take into account?
If the financial matters do reach Court, the District Judge will
take into account the relevant factors:
* the welfare
of any children of the family who are under 18 years old
* the income, earning capacity, property and resources of each person
* the financial needs, obligations and responsibilities of each
person
* the standard of living enjoyed by the family before the breakdown
of the marriage.
the age of each person, and the duration of the marriage
* any physical or mental disability
* the contribution made by each person to the welfare of the family,
including looking after the home and bringing up children
* the conduct of each person, but only if it was so bad it would
be unfair to ignore it
* any serious disadvantage to either person that would be caused
by ending the marriage
Do I have to tell my partner about all my assets?
It is important to realise that the starting point in settling the
finances, is a full and frank disclosure of all of your assets and
liabilities, incomings and outgoings. If something is not declared,
but discovered later, it will not help your case and could well
amount to conduct which the Judge would wish to take into account.
Are financial issues dealt with before the divorce is finalised?
It is not necessary for financial discussions to be completed by
the time the divorce is final. Often you will still be in the early
discussion stages if the financial issues are complicated. However,
it should at least be possible to resolve any immediate problems
and make temporary maintenance arrangements.
What happens to the house?
Usually the house is a family’s main asset, and in line with
the need to consider the welfare of any children, the Court would
consider it important to ensure that they have a suitable home.
The issue of the house could be settled in a number of ways. It
could be sold, and the proceedings divided between the parties,
or one party could keep the house and pay a sum of money to the
other. On rare occasions, one party stays in the house, with the
other maintaining an interest in it that is given to them when the
house is sold.
What is maintenance?
Maintenance is the term used when a settlement includes some form
of regular payment from one party to another. This is often for
the upkeep of a child. This is called Child Maintenance and can
be either for a fixed term (for example until the child is 18),
or ongoing and reviewed on a regular basis. If it is for the benefit
of the wife, it is called Spouse Maintenance.
What about pensions?
There are a number of different types of pensions and a valuation
of the pension fund would need to be obtained. Pension funds can
simply be offset against other assets.
Also there are
different types of orders which can be made in respect of pensions.
A percentage of your spouse's pension may be earmarked such that,
when the pension becomes payable, you will receive regular payments.
However there are a number of disadvantages to such an order.
A second option
is a Pension Sharing Order and this provides for a share of the
pension to be transferred so that each spouse has a separate and
distinct fund. The main advantage of such an order is that it provides
for a clean break between spouses.
We would seek
to negotiate an agreement with your spouse which could be approved
by the Court or, if no agreement can be reached, can assist in pursuing
an application to the Court.
4. When Children are involved
One of the most important things to consider when a couple separate
or divorce is the effect it will have on their children. Rather
than talking about the rights of parents, the law talks about the
‘parental responsibility’ for a child.
* So how are
things decided?
* What will the Court decide?
* What if we cannot reach an agreement about our children ourselves?
* What happens to the children if we are not married?
So how are things
decided?
Regarding making the arrangements for children it is important to
be willing to negotiate and come to an agreement rather than argue
at length. If both parties agree a proposal, it is more likely to
work than if one party is not happy.
It is best if
you and your partner can come to some private arrangement regarding
your children. This means the Courts do not become involved and
your children are protected from unnecessary upset. If you and your
partner have come to some agreement, you will need to tell your
solicitor about it so that it can be formalised if this is what
you wish.
What if we cannot reach an agreement about our children ourselves?
If you cannot reach a private agreement yourselves, the first step
is to speak to your solicitor. They may be able to suggest alternatives
and to speak with your ex-partner’s solicitor and come to some
agreement, again without involving the Courts directly.
If this proves
impossible, the Court will become involved and will make the decision
based on the evidence it receives. The Court will need details of
the children such as their ages, their wishes and feelings, the
ability of the parents to meet their needs and any other information
it considers relevant. The Court may ask for a Children and Family
Advisor to prepare a report looking at all of these aspects. A Court
and Family Reporter is an expert who deals with these cases on a
day to day basis. This is likely to involve a visit to where the
children are living and, potentially a visit to the other parents
home address (with or without the children being present) and asking
them questions on how they feel.
What will the Court decide?
The Court is under a duty not to make an order unless it is necessary
to do so.
What happens to the children if we are not married?
For unmarried parents the mother will automatically gain parental
responsibility. The father will have to either enter into an agreement
with the mother or apply to the Court to gain parental responsibility.
The law in this respect has however changed and in future, if the
father is named upon the child’s birth certificate he will
also automatically gain parental responsibility. There are a number
of instances where the agreement of all those with parental responsibility
is required, for example to change the name of a child or to take
them out of the country. Hegarty
& Co. Solicitors
|
