Relationship Breakdown – Divorce Procedure

Relationship  Breakdown - Divorce Procedure

Mediation

From April 6 2011 all  separating couples will have to at least show that they have been in contact  with an accredited mediator and have considered how mediation might work for them. If, having  considered mediation, they reject the option, then they will still have the  option of taking the matter to court.

The new rules bring all divorce cases into line with the situation  where couples have been granted legal aid and those proposing the changes hope  it will save money.

Some  cases will still be allowed to go straight through to court, such as in cases  where there are allegations of domestic violence or child protection matters.

When can I get a  Divorce?

In order to  get a divorce you need to have been married for more than twelve months. You  will also need to show that the marriage has broken down.

To prove  that the marriage has broken down you will need to show one of the following:

  • Adultery
       You do not need to know the identity of the person that your spouse has  committed adultery with and you do not need to name them on the Divorce  Petition. However, if your spouse denies the adultery then you may be requested  to prove it. This can be very difficult and for this reason divorce petitions  based on this ground do not always succeed.
  • Unreasonable Behaviour
       You will be asked to give examples in the divorce petition about your spouse's  unreasonable behaviour. You must also state why this has made it difficult for  you to continue living with them. You may use adultery as an example and you  would not need to prove the adultery. This may be a better option than relying  on adultery as the only ground.
  • 2 Years Desertion
       You will need to supply the date of when your spouse left you and show that you  have not heard from your partner since that date. You cannot start divorce  proceedings until your spouse has been left for two years.
  • 2 Years Separation
       In order to use this ground for divorce your spouse must agree to the divorce.  You will need to put the date of the separation on the divorce petition and  state briefly the reason for the separation. If you do not know the exact date  of the separation you can give an approximate date as long as it can be clearly  shown that two years have passed.
  • 5 Years Separation
       You do not need your spouse's consent to divorce on this ground. This ground is  therefore useful if you know that you will have difficulty getting your  spouse's consent. You will need to give details of the date of the separation  and brief reasons why you separated.

Starting  Divorce Proceedings

Note: from 22 April 2014, proceedings will have to  be issued in the newly created Family Court.   In most cases,  you will have to consider mediation by attending a Family Mediation Information  and Assessment meeting before making a court application about arrangements for  children or financial proceedings following separation or divorce.

You can find  details of your nearest  Family Court by entering the area of law and your postcode using the court and  tribunal finder on the GOV.UK website at www.gov.uk.  You are then informed by HM Courts and  Tribunals Service where your case will be heard.

All outstanding family proceedings that were issued in a county court or  family proceedings court before 22 April, will continue in the Family Court.  Any applications received but not issued on or before 21 April will be issued  in the Family Court.

  1. The Applicant's       solicitors (or the applicant) send the Divorce Petition, with the court       fee and the marriage certificate, to the court. If you have children, the       Divorce Petition should be accompanied a statement about the arrangements       for children.
  2. The court will       register the case, process the papers and send copies of the Petition, the       statement of arrangements for children and an Acknowledgment of Service       form to the Respondent or the Respondent's solicitors.
  3. The Respondent       or their solicitor will fill in the Acknowledgment of Service form,       stating that the papers have been received and read and that the divorce       is not being contested.
  4. The       Acknowledgment of Service is filed by the court and a copy of the       completed form is sent to the Applicant or the Applicant's solicitor.
  5. The Applicant's       solicitor or the Applicant prepare an Affidavit (a sworn statement)       stating on oath that the contents of the Divorce Petition are true. The       Solicitor or the Applicant then file the Affidavit at court along with a       form requesting that the divorce papers are considered with a view to       granting the decree nisi.
  6. The District       Judge considers the filed papers and decides whether a decree nisi should       be granted. If the Judge decides that the decree nisi should be granted       then both parties are notified by the Court of the date and time when the       decree nisi will be announced in court.
  7. The court       pronounces the decree nisi. It is not necessary for anyone to attend court       on this date as it is simply a formality.
  8. A sealed copy of       the decree nisi is sent to both parties or their solicitors.
  9. Six clear weeks       after a decree nisi has been granted the Applicant or their solicitor can       apply for a decree absolute. If no application is made the Respondent can       apply for a decree absolute three months from the date of the decree nisi.       If no application for a decree absolute has been made within one year the       Applicant must explain the delay to the court who then have a discretion       to grant or refuse it.
  10. The court sends       the sealed decree absolute to both parties or their solicitor. The       marriage has now officially ended.

Can  I get my Marriage Annulled?

Under  certain circumstances you may be able to have your marriage annulled. You must  apply to annul the marriage within a reasonable period of time, in some cases  this will be three years. There is no requirement to have been married for  twelve months.

Examples of  when you may seek an annulment of your marriage are:

  • The marriage has       not been consummated.
  • At the time of       marriage your spouse was already married to someone else.
  • One of you was under       16 years of age when you got married.
  • You have married       a close relative.
  • Your spouse had       a venereal disease at the time of marriage and they knew about it but you       didn't.
  • Your spouse was       pregnant with another person's child at the time of the marriage and they       knew about it but you didn't

Timescale

A divorce can take as little as four to  five months from start to finish, although it may take much longer. The time  taken is very much dependent on the complexities of the finances involved. This  are normally dealt with between the time of Decree Nisi being granted and the  application for Decree Absolute.

How do I pay for it?

You can't get legal aid for most private family law cases such as divorce,  or disputes about children and finances unless you're a victim of domestic  violence or abuse. Domestic violence or abuse covers psychological, physical,  sexual, financial or emotional abuse. You can get legal aid for family mediation.

If you are eligible for legal aid, you must meet the  financial criteria.

How Can We Help

Divorce is a difficult time for  those involved. There are new requirements in relation to mediation and on 22  April 2014 the new single Family Court was created. The courts are concerned that disputes are  not brought to court unless there is no other alternative. Generally, a settled  divorce will be less costly than a contested divorce case. With this and the  recent procedural changes in mind, our qualified and experienced family team  will seek to advise you throughout the divorce process, as well as offering you  information about alternative resolution options. We can also help you with the  protection and distribution of jointly owned assets, both property and  financial, and with any issues relating to your children.

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