Divorce Process And Procedures
Divorce Process And Procedures
The breakdown of a marriage often results in stress and financial upheaval for those involved, in particular if one party doesn’t wish the marriage to end. A marriage is formally resolved through divorce proceedings. Financial matters, although linked, are dealt with separately within the divorce proceedings.
WHAT GROUNDS ARE THERE FOR A DIVORCE?
The grounds for divorce are:
- The other party’s adultery
- ii. Unreasonable behaviour
- iii. Desertion for 2 years
- iv. Being separated for 2 years with the other party’s consent
- v. separation for 5 years
To try to minimise hostility there is no requirement to name the third party involved in adultery proceedings. The courts actively discourage the naming of third parties. For a divorce to proceed on the ground of unreasonable behaviour, a few examples of the other party’s behaviour need to be included within the divorce petition. It’s usual for both parties to try to agree content of these examples to try to avoid unnecessary hostility.
WHAT IS THE PROCEDURE?
The party who prepares and sends the divorce petition to the court is the Petitioner.A copy of the divorce petition is also sent to the court and a copy is then sent to the other party, the Respondent, direct by the court. The other party is then required to complete a document to state that he or she has received the petition and also whether or not they will be defending the proceedings. To successfully defend a divorce the other party needs to prove the marriage has not irretrievably broken down. Defended divorces are extremely rare. Undefended divorce proceedings are private proceedings and the general public do not have access to the court file. The papers therefore are usually only ever seen by the parties themselves, their legal representatives and the judge. In undefended divorce proceedings the Petitioner swears on oath that the contents of the divorce petition are true and the judge then reads through all the divorce papers and confirm whether the Petitioner is entitled to a divorce by setting a date for the decree nisi, the first stage in the dissolution of a marriage. Parties do not need to attend court for the decree nisi. Once there is a decree nisi, although this means the judge is satisfied the Petitioner may have a divorce, the parties remain married. Six weeks and one day after the date the decree nisi is made the Petitioner may apply to the court for the decree absolute. It is the decree absolute which dissolves the marriage.
HOW LONG DOES IT TAKE?
It is usual for divorce proceedings to conclude between 4-6 months after the divorce petition is first sent to the court. However, it is usual for financial matters to be resolved whilst the divorce proceedings are going ahead. If financial matters have not been resolved by the time the Petitoner may apply for the decree absolute, the application should be delayed until financial matters have been resolved. This is to ensure that benefits in respect of pension provision and life policies are not lost if one party dies in the meantime.
HOW ARE FINANCIAL MATTERS RESOLVED?
It is always better for parties to try and agree settlement terms without going to court. This is so they can retain an element of control and reach a settlement that they can both live with, rather than be faced with settlement terms that have been imposed on them by a judge. There are several factors that are taken into account when considering how to divide assets between parties when a marriage has broken down. These include the income and financial needs of the parties, the standard of living enjoyed by them before the breakdown of the marriage, the age of each party and the length of the marriage and the contributions each party has made to the welfare of the family, both financially and in terms of looking after the home or caring for the family. Before the terms of any settlement can be considered properly, both parties need to exchange full details of their financial circumstances and their future income and capital needs. This includes full details of the value of any pension provision, even when a pension is already in payment. Once an agreement has been reached, the terms of the agreement are drafted in a document called a Consent Order and this, together with a summary of both parties’ financial circumstances, is sent to the judge. The Judge then considers the terms of the proposed settlement. Once the terms of the settlement have been approved by the judge, the judge seals the consent order and then once the decree absolute is granted the terms of the settlement are fully binding and enforceable.
To discuss any aspect of divorce further or require specific advice please contact Victoria Josif of Blocks Solicitors on 01394 28324.