If you are considering a divorce or dissolution – this is the guide for you!
This is quite simply a guide for those considering divorce and dissolution and aims to provide some free information with respect to this area of family law.
Now, I could start by wowing you with facts and figures in respect of divorce rates in England & Wales. I mean think about it, you would be so impressed by my ability to google and regurgitate figures. For any readers unsure, there is most definitely a strong aftertaste of sarcasm in my opening. Sorry, not sorry. I mean, really, whilst considering the breakdown of your relationship and the impact on you, your ex-partner, children and finances – are you really going to be pondering ” I wonder how many divorces have progressed in the last quarter?”.
The long and convoluted point I am making is that sometimes people just want to read the relevant information. I somewhat loosely promise to try to provide the information below in a more succinct manner. Oh, and yes, the irony of making this point, in this manner, is not lost on me.
Alternatives to Divorce – Huh, Reconciliation?!
I must say, there can be occasions where parties reconcile and seek to withdraw divorce proceedings. It is not out of the realms of possibilities for two individuals previously in love to fall back in love. The mysteries of love will never cease to amaze. Therefore, I make it a priority to confirm to clients both orally and in writing the options they have when considering marriage reconciliation. I will now use a word that I still feel carries way too much negative stigma based on a stiff upper lip. Counselling.
The benefits can be amazing. I appreciate this can only be considered where appropriate and you may have exhausted all avenues before taking the fundamental step of divorce and dissolution. In such circumstances, at the very least you are fully informed as to alternatives.
There are also legal alternatives which may apply dependant on your circumstances, i.e. informal separation, formal separation, and judicial separation. I will not delve into these topics herein but invite you to consider my other articles.
Petition: This is the application for divorce, dissolution and judicial separation.
Petitioner: The party making the application.
Respondent: The party replying.
Decree Nisi This is not the end of the divorce process. The court will consider the file and decide if there are any reasons why the divorce cannot proceed to the next stage of Decree Absolute.
Decree Absolute: This is the legal document that ends your marriage.
The story of divorce – the age-old remedy to the breakdown of a marriage. It is one that will continue for a long time. However, thankfully, there are modern developments which mean that the process will become less litigated (‘no-fault divorce’) and more accessible (‘online divorces’). Again, something I will not delve into herein.
It is very important that you find the right legal representative for you. This is not a cold commercial transaction and therefore requires you to have somebody who you can work with to achieve the best outcome for you and your family.
The costs that can be attached to remedying inadequate legal representation, or inappropriate utilisation of online entities, can be substantial and can have further ramifications in terms of complications and consequent court proceedings. I guess what I am saying is, do you research and find somebody who is the best fit for you and your personal circumstances.
The One Year Time Bar
Did you know that you cannot divorce in the first year of marriage? Interesting, I know.
This simply means that if you are still within the first year of your marriage you cannot petition for divorce and must wait for the year to pass. This does not mean that any progress stops. Absolutely not. If your legal representatives are alert, they can take your instructions and prepare your matter to proceed at the point that the one year has passed. Also, please remember, just because you cannot petition for divorce in the first year, it does not mean that you are prevented from relying on issues that arose within the first year of marriage.
What are the Grounds for Divorce?
Okay, let us take away that ‘..s..’ from the word grounds. There is a misconception that there are many grounds for divorce. This is not in fact true. There is only one ground for divorce and us legal representatives must prove that your marriage has ‘broken down irretrievably’.
On What Basis Can I Apply for Divorce?
In the current system, the options are limited and mean that one party has to petition against the other party. Simply, one party has to provide reasoning for the divorce to proceed. It is very important that this is done properly, as with the right approach, this can proceed without one party becoming offended and deciding to defend the proceedings. It is very important to avoid defended proceedings where possible as they cause unnecessary costs, delays, and disputes.
Okay, so back to the process. The ground is proven by one of five facts:
- ADULTERY – whereby we petition to state that the respondent has committed adultery and that you find it intolerable to live with them any longer;
- UNREASONABLE BEHAVIOUR – this is arguing that the respondent has behaved in such a way that you cannot reasonably be expected to live with them;
- DESERTION – in circumstances where the respondent has deserted you for a continuous period of at least two years immediately preceding petition;
- 2 YEARS SEPARATION (WITH CONSENT) – If you have both lived apart for a continuous period of at least two years immediately preceding the petition and the respondent is agreeable to the decree progressing.
- 5 YEARS SEPARATION (NO CONSENT) – If you have lived apart for a continuous period of at least five years immediately preceding the petition.
We would assist you on the basis of your personal circumstances and tailor the documentation accordingly. If the incorrect fact is selected, it could lead to the court refusing the petition, the parties’ disputes escalating and matters becoming defended and/or requiring attendance at court. Oh, not to mention the additional costs and delays, i.e. should you need to amend a petition. Remember, normally in undefended proceedings, neither party has to attend court.
Now, it is possible for you to apply for divorce and dissolution in England & Wales if you satisfy the court that they have jurisdiction to handle this matter. This means that we would have to consider your circumstances and decide if you are domiciled here or satisfy certain residency criteria.
The 5 Stages of Divorce Proceedings
If the proceedings are undefended the common stages are as follows.
First Stage – Understanding
The first step is for you to understand the law, legal processes, and procedures. This is often done by way of instructing legal representatives and providing them a thorough background of your personal circumstances. It is very important for a plan of action to be prepared and tailored to your personal circumstances.
Second Stage – Commencing Proceedings – Filing & Service
During this stage, we would routinely prepare your plan of action and then progress the same. This would include: drafting the petition; a statement supporting the reasons for divorce; preparing the associated documents and court bundles. It is fundamental that you thoroughly consider all the contents and provide your approval before the documents are sent to the court for issue. If all of the documentation is in order, they will be issued and assigned a case number. If not, they will be returned. The court will serve the respondent with the documents and this will normally be by way of post. If you seek the documents to be served by alternative means (i.e. email) then further application(s) will need to be considered.
Third Stage – Acknowledgment of Service
This Acknowledgment of Service is a two-page form that the court provides to the respondent when serving them with the issued divorce documentation. This will normally need to be completed by the respondent and returned to the court. If the respondent completes this and confirms that they are not defending the proceedings, the matter will proceed and their involvement will normally cease at this stage. The remainder of the steps will continue to be taken by you or your legal representatives. If they decide to defend the proceedings your legal representatives will need to act in a measured way to avoid unnecessary costs, proceedings and court hearing(s). The defended proceedings are a lengthy topic in themselves and will need to be considered by me at a later stage.
Fourth Stage – Decree Nisi
The court will inform us that the Acknowledgment of Service has been completed appropriately and returned. We will then consider the same and advise you in respect of the contents. If the matter continues undefended, we will prepare an application for Decree Nisi and a Statement in Support. Again, it is very important that you personally approve the contents of these documents. If the court is satisfied that legal and procedural requirements are met, they will list a hearing for the Decree Nisi to be pronounced in court. The parties need not attend this hearing unless there is an issue in dispute.
Unfortunately, it is at this late stage that some petitions are refused. This could be for reasons such as the court not being satisfied, by the evidence provided, that the marriage has broken down irretrievably. This highlights the vital importance of ensuring the correct fact is selected at the outset and full supporting evidence is provided to satisfy the court. Otherwise, sadly, there will the additional costs attached to amending the petition and re-serving the same. This will clearly also delay the proceedings and stretch out that 4-6 month estimate.
Fifth Stage – Decree Absolute
This is the final stage. Often people feel a great sense of relief when they reach this stage. It is understandable. However, remember that the court requires a period of 6 weeks and 1 day after the Decree Nisi pronouncement to pass. Thereafter, we can make an application for Decree Absolute. When this is processed the court will return the Decree Absolute and this will conclude the marriage. That would be the end of your marriage.
It is very important to consider financial matters before deciding to proceed with the Decree Absolute. It requires an expert eye to consider your financial circumstances and decide if you are at risk of losing certain financial entitlements (i.e. your partner’s pension). It should be a considered decision and the financial circumstances should be handled with care.
The Timeline for Divorce?
In my time within family law, I have heard a lot of ‘tall tales’ and misconceptions in respect of the divorce and dissolution process. If I can name one, it is the ‘quickie’ divorce process, fuelled by misunderstood tabloid headlines often referring to the rich and famous. Please take this with a jug (not a pinch) of salt.
I have held a substantial client base of approximately 300 clients at one time and have processed divorces throughout England & Wales. This gives me the distinct advantage of noting the issues, delays, and inconsistencies within the system – dependant on geographic location.
The simple point is that the court system is suffering noted difficulties and the under-siege court staff are trying their best in difficult circumstances. This means an inevitable delay in processing. It is best to be mentally prepared for this and to tailor your expectations accordingly. The point being that on average divorces are currently taking between 4-6 months. The timeline can be further skewed by financial remedy proceedings in cases where there is the possibility of a loss of entitlements should you complete your divorce (i.e. partner’s pension).
It is also important to point out that the incorrect legal representation can often lead to unnecessary delays, costs and proceedings – not what you need! This being said, with the right legal representation, it is possible for you to instruct your solicitors to work at a faster pace and they can ensure that there is no delay from your side.
What About the Costs of Proceedings?
The legal representatives’ costs can vary. I will make a simple point. If matters seem too good to be true, look a bit deeper and do some research. It is important that you get value for money and often most firms provide a fixed-fee divorce service. It is very important that you fully understand the extent of such a fixed-fee agreement and the further costs that can arise should the circumstances fall outside of this agreement. I think you may find that the marketing hype is not all that you expected. The careful selection of legal representatives will ensure you are represented by someone who has your best interest at heart and that you fully appreciate the costs of the service.
The current court fees are £550.00. however, I think that something that is often overlooked is the excellent court fee remission system that could reduce your fees – dependant on your financial circumstances. If you meet certain eligibility criteria the whole court fee could potentially be waived. Therefore, you may not have to pay a fee, or you may pay a reduced fee if you:
- have no savings or investments, or only a small amount
- and receive certain benefits
- or are on a low income
Please visit https://www.gov.uk/get-help-with-court-fees for in-depth information.
This article has set out to provide you some initial information in respect of divorce and dissolution and is drafted by our very own Head of Family Department, Azhar Hussain.
If you would like to have a free no-obligation chat with Azhar Hussain, please feel free to contact LPS Solicitors on 0800 996 1807