This article by Jennifer Allen looks at the extent to which either pre or post-nuptial agreements will be taken into account by the Court and also looks forward to the impact Brexit may have on this area of law.
The Divorce Process Explained
- AuthorMarcus Crawley
The Court of Appeal has recently had a rare opportunity to consider the position in respect of defended divorce. A defended divorce is one in which the respondent either does not agree that the marriage is at an end or does not agree with the petitioner's reasons for the breakdown of the marriage. In the recent case of Owens v Owens, the President of the Family Divison, Sir James Munby, set out the figures in respect of defended divorces:
"In the year to January 2017, there were 113,996 petitions for divorce. The details are not published, but I understand that, over the same period, notice of intention to defend was given in some 2,600 acknowledgements of service (some 2.28% of all petitions) while actual answers filed were about 760 (some 0.67% of all petitions). There are no available statistics, but one can safely assume that the number of petitions which proceed to a final contested hearing is minute, probably little more than a handful. So, the attritional effect of the process itself reduces from an initial 2.28% of rrespondents who are minded to oppose the petition to an utterly trivial, let us say something of the order of magnitude of 0.015%, of respondents who actually carry their opposition through to a contested hearing."
The numbers relating to divorce, as outlined by Sir James Munby, demonstrate that the vast majority of divorces in England and Wales proceed undefended. It is now fairly rare to meet a client who does not know someone who is going through or has been through a divorce. Despite this, the divorce process can sometimes appear to be somewhat of a mystery to many. In this article, I seek to set out the basic divorce process to assist in shedding some light on what an undefended divorce entails.
What are the requirements for me to get divorced?
To apply for a divorce, you must have been married for at least a year. It doesn't matter where in the world you were married, but you can only apply for a divorce in England and Wales if either you or your spouse meet certain residence conditions or are domiciled here. You should speak to your family lawyer about this if you are in any doubt.
Starting Divorce Proceedings
The divorce process is generally administrative. This means that usually neither of you will need to see a judge to get a divorce, as it is almost always agreed by a judge on the paperwork. The process is simple, as long as your spouse does not seek to defend the divorce.
The document that starts the divorce is called a petition. The law in this country still requires one spouse to petition against the other, even if both of you agree that there should be a divorce. You cannot file a petition for divorce in the first year of your marriage. We will need to have you original (or an official copy) marriage certificate to file the petition and also an approved translation of what it says if it is in a language other than English. At the time of writing, there is a court fee payable of £550 to start the process.
To start a divorce, you (or we, on your behalf) must file a petition at court. The petition is a form that gives the court information about you and your spouse, and tells the court that you feel your marriage has irretrievably broken down. You must briefly set out evidence that your marriage has broken down by supplying certain details in one of the following five categories:
That your spouse has committed adultery
That your spouse has behaved unreasonably
That your spouse has deserted you for two years
That you have lived apart for two years and your spouse consents to the divorce, or
That you have lived apart for five years
The person starting the divorce is called the petitioner and the other spouse is called the respondent.
Children and Finances
For the purposes of any financial or children arrangements that need to be made, it doesn't matter in most cases who starts the divorce and why. You can ask the court to make orders about money and about children if necessary during (or after) the divorce, but these legal procedures are completely separate from the divorce itself.
Agreeing the contents of the petition
The Law Society says that a family solicitor acting for someone who wants a divorce should usually send a draft copy of the divorce petition to the other spouse at least seven days before it is filed at court. This gives the other spouse the opportunity to obtain legal advice and raise an objective if there is anything in the petition that they find particularly offensive. It tends to be better to agree on what is in the divorce petition if possible, as disputes about what goes in can have implications for the smooth progress of the rest of the divorce arrangements.
If your spouse has committed adultery it is technically possible to name the person with whom they committed adultery as a co-respondent in the divorce. However, we do not recommend that you do so unless you believe that your spouse is likely to defend the proceedings. In our experience, naming a third party in divorce papers raises the emotional temperature between you and may make it more difficult to agree arrangements in other areas, increasing your stress levels and legal costs as a result.
Filing the petition
The petition is filed at court with the court fee and your original (or an official copy) marriage certificate.
Serving the divorce papers
The court, or we, will send the petition out to ('serves') the respondent together with a form for them to fill in, called the acknowledgement of service. In this form the respondent has to say whether or not they intend to defend the divorce. The form has to be returned to the court. If the respondent has no intention to defend the divorce that is the end of their part of the process and all further steps are taken by the petitioner at their own pace.
Applying for the decree nisi
The next step is for the petitioner to complete a statement in support of the petition. This is another form that states that the contents of the divorce petition are true and asks for certain technical legal details such as whether you have lived in the same household since a certain relevant date. We will then file it at court with your application for a decree nisi. The decree nisi does not mean that you are divorced. It is like a half-way house in the divorce process and means the court has agreed that you are entitled to a divorce. After the court has received your application for a decree nisi, a judge will look at your papers to make sure they fulfil the legal criteria and if they do the court will issue a certificate telling you when the decree nisi will be pronounced.
Decree nisi is pronounced in open court. This means the judge reads out a list of names of people whose divorces have got to this stage, this week. Although anyone can go along if they want to, you do not have to attend court when this happens. At any time after decree nisi, the court is able to make a binding financial order setting out your arrangements for finances and property on divorce, either by consent or as a result of separate court proceedings. It will not do so unless you ask it to or your separate financial court proceedings have come to a conclusion.
Finalising the divorce suit
Six weeks and one day after the grant of decree nisi, the petitioner can apply for the decree absolute, which formally ends the marriage. Not everyone should apply for decree absolute as soon as it is available and you should make sure you have discussed this with us. It may not be sensible to apply immediately, for example, financial arrangements are not yet settled. You should discuss your specific circumstances with us as in some cases the grant of decree absolute will prevent certain types of financial claims being made. However, if the respondent is keen to end the marriage and the petitioner has not applied for the decree absolute, the respondent can ask the court for permission to do so after a certain period of time (about four-and-a-half months from decree nisi). The court will usually grant such an application unless there are particularly pressing reasons not to do so.
How long wil divorce take?
If each step in the divorce is taken promptly and financial arrangements do not hold things up, the divorce process usually takes between four and six months.
Other arrangements in relation to finances and children may take longer to resolve.
If you require assistance in relation to issuing divorce proceedings, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.