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Understanding the divorce procedure

As a Family Law Solicitor I have had many clients come to me with enquiries about divorce but have been unaware or confused by the exact divorce procedure. Therefore I wanted to write this post to explain the process to future clients to help you understand each the entire process and what it entails.

There is only one ground for divorce, which is that the marriage has irretrievably broken down. To satisfy the Court that the marriage has irretrievably broken down, the petitioner must prove one of five facts, i.e. the respondent has committed adultery, the respondent’s unreasonable behaviour, the respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce, 2 years separation with the respondent’s consent and the parties have lived apart for five years.

Most divorces are based on either adultery or unreasonable behaviour as these are the only two facts that allow the petitioner to begin divorce proceedings immediately without waiting for a period of at least two years. The person with whom the respondent commits adultery must be of the opposite gender. In addition, the petitioner cannot rely on adultery as a fact if, after becoming aware of the adultery, the parties cohabited for a period (or periods when added together) exceeding six months. Lawyers encourage the petitioning spouse to not name the person with whom the adultery took place to avoid further acrimony. The fact of unreasonable behaviour involves consideration of the nature of the respondent’s behaviour and its effect on the petitioner. It is a question of fact whether the behaviour is sufficient to entitle the petitioner to rely on it to support the irretrievable breakdown of the marriage. The allegations of behaviour need not be serious and the petition can set out mild particulars of behaviour to minimise acrimony, as long as the effect of the behaviour on the petitioner is adequately described. Particulars could, for example, include the respondent working too much, or failing to demonstrate love and affection towards the petitioner.

In accordance with Family Law Protocol, the draft divorce petition should be sent to the respondent spouse to agree as much of the particulars as possible to avoid delay, costs and defended proceedings. Once the divorce petition has been finalised at Court, the papers will then be served on the respondent or solicitors instructed by them who will need to file a document, called an acknowledgment of service form, which acknowledges receipt of the petition and indicates whether the respondent agrees with the contents of the petition. It is possible for a respondent to indicate an intention to defend the divorce proceedings in the acknowledgment of service, but defended divorce proceedings are rare and discouraged by lawyers.

If the respondent does not indicate an intention to defend the proceedings, the petitioner will be able to apply for the first stage of the two-part divorce order, decree nisi. The petitioner must file a statement in support of the petition to accompany the application. The statement poses a number of questions aimed at ensuring the contents of the petition remain true and correct and that there have been no changes in circumstances that may affect the petitioner’s ability to rely on the relevant fact to support the irretrievable breakdown of the marriage.

Once six weeks and one day has elapsed from the pronouncement of decree nisi, the petitioner will be able to apply for the final decree of divorce, decree absolute. This brings the parties’ marriage to an end and the parties are then formally divorced. The petitioner should not, however, apply for decree absolute until any application for financial orders has been resolved. To that end, divorce proceedings only resolves an aspect of the parties’ matrimonial difficulties – do not overlook financial matters which will remain unresolved until a financial Court order has been approved and sealed by the Court otherwise your financial position may remain in jeopardy.

If you would like to arrange an appointment to discuss the divorce proceedings with myself, please do not hesitate to contact me on email: fkhalid@clarkeandson.co.uk or Tel: . We are currently offering all new family law clients an initial consultation (1 hour) with written confirmation of advice for £100 plus VAT.

Farah Khalid

Family Law Solicitor

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