FAMILY LAW

A breakdown in family relationships is one of the most worrying and traumatic of emotional circumstances. Our aim is to offer uncomplicated, confidential advice support and assistance.

Relationship breakdown, divorce and separation

• Divorce Petitions
• Civil Partnership breakdown
• Separation procedures
• Disputes between cohabitees, including same sex couples
• Ancillary Relief - splitting the property, cash assets and pensions

Children Act proceedings

• Residence and contact
• Parental rights, responsibility and guardianship issues

Living together

• Prenuptial agreements
• Cohabitation agreements

Claims against estates

• Inheritance claims
• Disputed Wills

DIVORCE PROCEDURE

Divorce is a commonplace occurrence these days and few people in such circumstances have much idea at the outset of how the process operates. Each case is unique and therefore needs individual appraisal, but what follows is a brief and simplified guide to explain some of the procedures involved in an uncontested divorce.

Preparation of the divorce petition

Divorce proceedings can only be commenced if the parties have been married for more than one year. The party to the marriage who starts the proceedings is referred to as the petitioner whilst the other party is called the respondent.

The petition contains information about the names, addresses and occupations of the parties, the names and dates of birth of any children of the parties and the details of the marriage. Most importantly the petition will establish the reason for divorce.

The only ground for divorce is that the marriage has irretrievably broken down and this must be demonstrated by one of five facts:

1.That the respondent has committed adultery and the petitioner finds it intolerable to continue to live with him/her.

2.That the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to live with him/her.

3.That the respondent has deserted the petitioner for a continuous period of two years or more preceeding the date of presentation of the petition.

4.That the parties to the marriage have lived apart for a continuous period of two years or more preceeding the date of presentation of the petition and the respondent agrees to the divorce.

5.That the parties to the marriage have lived apart for a continuous period of five years or more preceeding the date of presentation of the petition whether or not the respondent agrees to the divorce.

Issue of the proceedings

The petition is sent to the court with the marriage certificate and a statement detailing arrangements for any children and the appropriate court fee (currently £300). A certificate is also used to indicate whether or not the possibility of reconciliation has been discussed with the parties. The court will allocate a case number and arrange for the petition to be served on the respondent. Once the petition has been successfully served and acknowledged, and provided the respondent does not intend to defend the petition, the matter can progress to the next stage in the proceedings.

Application for directions for trial (special procedure directions)

An application is lodged with the court accompanied by an affidavit sworn by the petitioner. The affidavit confirms the contents of the divorce petition as being true. A District Judge considers the contents of the affidavit and if satisfied will give notice of the date when the decree nisi will be granted. He will also consider the arrangements for any children and whether the court needs to be involved in making any order in relation to them.

Decree Nisi

On the date fixed, a District Judge will read out the decree nisi in court. The petitioner and respondent do not usually need to attend court. The court sends a copy of the decree nisi to both parties but this does not dissolve the marriage.

Decree Absolute

Six weeks after the decree nisi and if there are no difficulties, the petitioner can apply to the court for the decree nisi to be made Absolute. The application is sent to the court with the court fee of £40 where a District Judge considers it and if satisfied that it meets the necessary criteria will issue the decree absolute certificate. If the petitioner does not make the application, the respondent can apply but only after four months have elapsed from the date of the decree nisi.

It is helpful if arrangements concerning any children and the split of the financial assets are agreed between the parties without having to go to court to resolve these matters. However it is important to have good legal advice even if these decisions are taken amicably.

The divorce process is likely to take approximately five months from the issue of the divorce petition. It will, however, depend on the nature of the case and will take longer if there are disagreements over children or money that cannot be resolved without intervention of the court.

Contact:

Sheila Mott
Email sheila@claytonmott.co.uk

The information and opinions contained herein are for general guidance only and not intended to constitute legal or professional advice. The information should not be relied upon or treated as a substitute for specific advice relevant to individual circumstances. Clayton Mott shall have no responsibility for any loss that may arise out of reliance on any material contained herein.