Grants' Guide to Divorce

The aim of this guide is to give  you a plain English overview of the various aspects of divorce law and procedure, as a back-up to the advice we gave you at your appointment with us. This document is not intended to give comprehensive advice, for which you should not hesitate to contact us at any time, but simply to offer a general idea of the law and the procedure of a divorce.

The person starting the divorce is called the Petitioner, whilst the other spouse is referred to as the Respondent. The majority of the divorces we conduct are lodged with the Croydon County Court. It is extremely rare that anybody involved actually has to attend the court at any time.

The Law

Who can apply for a divorce?

Anyone who has been married for more than one year, provided that one or other of the couple is either domiciled here or has been resident in England and Wales during the preceding year, may commence proceedings for divorce, subject to having grounds to do so.

What is the ground for divorce?

The person who seeks to apply for a divorce must be in a position to say to the court that the marriage has irretrievably broken down. The way this is justified and explained to the court is by one of the five ‘facts’ which prove the irretrievably breakdown of the marriage.

What are those 'facts'?

• 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 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.

A divorce based on Fact D is usually the most amicable and if this is available to you, it is invariably worth approaching the other spouse to seek their consent to the divorce proceeding, since this should mean the divorce application progressing smoothly. If the marriage has irretrievably broken down and one of the five facts apply, a petition for divorce may be presented to the court.

The Paperwork

Each petition for divorce follows the same format and contains basic information about the names of the parties, the address of the parties, the ages of the children and a statement that the marriage has irretrievably broken down. It then goes on to deal with the fact upon which the petition relies. The petition is lodged with the court together with the original or a certified copy of your marriage certificate. Once filed with the court, the marriage certificate is only returned in exceptional circumstances and with the permission of the judge, even if the petition is not actually proceeded with.

In addition to the basic information, the divorce petition will include a section known as the prayer, which is in effect a list of the various issues you are asking the court to deal with. This will include a request for the divorce to be granted, and may also include a request for an order stating who should pay the legal costs of the proceedings. It will invariably list the different types of financial application available as a matter of course, but this does not automatically mean that you are applying for each and every one. Further steps would be necessary to actually progress such an application.

If there are children of the family - which includes step-children and others that live with you - then there is a further form called a Statement of Arrangements which you will need to file with the court. It will sometimes be felt helpful to send it to the other spouse before the divorce is started, since the courts encourage parties to try and agree what should happen to any children involved. It will not, however, prevent the divorce from proceeding if agreement is not reached.

If you are being assisted with the legal costs of your divorce through the Legal Aid scheme, then there will be one more document, a Fees Exemption form, which will exempt you from the court fees that would otherwise be charged. As a term of the Legal Aid scheme, we will need you to sign all the documentation yourself, whereas non-legally aided clients are able to delegate this to ourselves.

The Procedure

The divorce petition, any Statement of Arrangements, any Fees Exemption form and the marriage certificate must be lodged with the court at the commencement of the proceedings. (For non-legally aided clients, we will include a form certifying whether we have discussed reconciliation and mediation with you). Only then will the court issue the application and get your divorce under way. You will of course have the opportunity to approve the documents prior to them being forwarded to the court.

Once the court receives the papers it will serve the other party by sending to him/her a copy of the divorce petition (and any Statement of Arrangements) together with an Acknowledgement of Service form. These papers are usually sent in the postal system and we are notified by the court as to when the papers were sent and the case number allocated to the proceedings. If this is inappropriate for any reason, we can arrange for the case to be issued and the papers returned to ourselves.

All that is usually needed as far as the Respondent is concerned is proof that he/she has received the paperwork. This will usually be self-evident when the Acknowledgement of Service is returned to the court, which should happen within 8 days. The form asks the Respondent whether he/she intends to defend the proceedings, whether any claim for costs is disputed, and whether that party is seeking any orders in relation to the children.

If there is to be any delay in the usual timescale, it is often at this point, since the court will not allow us to proceed until we can prove the Respondent knows about the proceedings. If he/she will not reply voluntarily, then the court bailiff or a process server will probably be needed to personally serve the Respondent. We can then usually proceed with or without the Respondent’s co-operation.

If the Respondent indicates an intention to defend the proceedings, within 29 days of service of the petition he/she must file with the court a defence called an Answer. At this point the proceedings become defended and the remainder of the procedure set out below does not apply. We would point out, however, that defended proceedings resulting in a fully contested hearing are extremely rare, but a delay in finalising the divorce is inevitable once the proceedings become defended.

Once we are in a position to proceed, the next stage is for you to swear a standard affidavit confirming that the content of the divorce petition itself is true and, if necessary, state whether any circumstances have altered since the petition was originally filed. Once sworn, it too is filed with the court together with another standard form, a Request for Directions for Special Procedure.

The District Judge will then consider all the divorce documentation filed and, if satisfied, will certify that the Decree Nisi may be pronounced. We will be sent notice of when this will happen. The Decree Nisi is the first of two decrees, and is in effect confirmation from the court that you are entitled to the divorce you have applied for. There is then a statutory minimum six week period, during which no steps are taken, before you can apply for the final decree, the Decree Absolute. This involves completing one final form (together with a further Fees Exemption form if appropriate) and sending it to the court. Within a reasonably short time of receiving that application, we should be in receipt of the Decree Absolute, the original of which will be forwarded to you in due course.

There are occasionally reasons, usually related to matrimonial finances, meaning it would be sensible to withhold applying for the Decree Absolute, but we would advise you on this nearer the time. The Respondent can apply for the Decree Absolute, having notified us beforehand, if three months have gone by since the Decree Nisi. In the event that a year passes between the Decree Nisi and the application for the Decree Absolute, the court would require an explanation for the delay.

Children

The courts have a principle that they will not get involved as far as the arrangements for the children are concerned unless they see the need to do so. If agreement has been reached it is thus unlikely that the District Judge will do more than certify the court’s satisfaction with what has been agreed. If there are any concerns, the court may invite the parties to an informal appointment to explore a solution to the difficulties, and in the more complex cases the court may be unable to progress the divorce to the end until the children issues have been resolved, but this is unusual. Please be aware that there are various steps available in relation to the children should there be a dispute.

Financial Matters

It is generally not necessary for all financial discussions to be completed by the time the divorce is finalised. Indeed, in many cases, particularly where the finances are complicated, negotiations would still be in their early stages by the time the divorce is coming to a conclusion. This is a separate area upon which we shall be happy to advise you in more detail.

Timescale

This is a difficult question to answer. We would usually suggest that the average time for divorce proceedings should be five to six months. This does of course however depend on the co-operation of the other party to the proceedings and the other steps being taken promptly. There can also be delays at the County Court, but there is now a Charter which sets out standards for the Court staff to follow, particularly with regard to the timescale.