A Guide to Divorce Proceedings
Introduction
Grounds for divorce
There is only one 'ground' for divorce which is that the marriage has irretrievably broken down. However, the petitioning party must establish this by proving one of five 'facts' which have thereby become de facto 'grounds' for divorce. These facts are:-
(a) adultery
(b) behaviour
(c) 2 years desertion
(d) 2 years separation and consent
(e) 5 years separation (in which case consent is not required)
Divorce procedure
- The party commencing the divorce proceedings issues a divorce petition and is therefore known as the petitioner. The other party is known as the respondent.
- The process is commenced by the filing at court of,
- the petition for divorce
- the statement of arrangements for the children (a formal questionnaire)
- the original marriage certificate
- a certificate as to whether or not the parties have attempted reconciliation
- a cheque for the court fee which is £300
- The court office will then issue the petition and serve the respondent. This is usually (but not necessarily) by post. The respondent will receive a copy of the divorce petition and the statement of arrangements for children and other formal documents including the Acknowledgement (a form acknowledging the service of the petition). There will probably be between 7 and 10 days between the petitioner filing the petition and the respondent receiving formal service.
- The respondent has 14 days from the date of receipt of these papers in which to file the acknowledgment and 14 days thereafter (if so advised) to file an answer if he or she intends to defend.
- If the respondent does not file his acknowledgement (which is relatively rare) the petitioner must either prove service by some other means or arrange personal service. Personal service will be effected by a court bailiff or a process server, not the petitioner.
- The court will send a copy of the acknowledgement to the petitioner who will then advance the process by completing and filing two documents, a 'request for directions for trial' and an 'affidavit in support of petition'.
- The request for directions for trial is a short form which is simply signed.
The affidavit in support of the petition is the only evidence the court receives in the course of these proceedings. It is a sworn statement in a standard form affirming the truth of the petition and (in certain cases) identifying the respondent's signature on the acknowledgement. It asks the court to grant a decree of divorce and will (where appropriate) ask the court to make an order for costs (see below). The affidavit must be 'sworn' before a court official or an independent solicitor. The court office will perform this function free of charge. A solicitor will charge £7.
On receipt of these documents the court file will be given to the judge to check the sufficiency or otherwise of the petition and the affidavit evidence in support. This will take some time, often a month or more. If the judge is satisfied with the documents he will certify that the case is suitable for decree nisi. Both parties will receive a copy of that certificate which will specify a date for the pronouncement of the decree nisi.
- The pronouncement of the decree nisi is technically a hearing which the parties can attend. In practice no one ever does but if the respondent does object to the decree he or she can attend the court to make that objection. This hearing is also used as an occasion to resolve any dispute as to the costs of the proceedings.
- Shortly thereafter both parties will receive a certificate confirming the decree nisi. This is not the final decree. The divorce itself is confirmed by a second decree, the 'decree absolute'.
- The petitioner can apply for decree absolute on or after 6 weeks from the date of decree nisi. The court fee is £30. The decree is granted automatically on the petitioner's application. No hearing is required.
- If the petitioner does not apply for decree absolute the respondent can apply but not sooner than 3 months from the date the petitioner could have applied. This application is not automatic and will be heard by a judge.
- If there is no application for decree absolute within 12 months from the date of decree nisi, either party can still apply for decree absolute but the judge will require a letter or affidavit which should
- explain the delay.
- confirm that they have not lived together for more than 6 months.
- state whether or not a child has been born to the wife and if so whether the husband is the father of that child.
- If the respondent defends the petition (i.e. denies the allegations and contests the petitioner's claim for a divorce) the case becomes formally defended and in due course there will be a trial of the issues. Defended divorces are very rare and it is not the purpose of this note to explain defended divorce procedure.
Costs
The general principles as to the costs of an undefended divorce are as follows –
It is common for the petitioner to include a claim for costs in the divorce petition. Sometimes the claim is expressed to be effective only if the petition is defended.
The respondent must use the Acknowledgement of Service to indicate whether a claim is accepted or disputed or limited to a specific amount.
If the respondent rejects the claim for costs the petitioner must state in the affidavit in support of petition whether or not the claim is pursued.
If the petitioner progresses the claim the judge will usually invite the respondent to attend the pronouncement of decree nisi to argue the point. If this is a significant issue the hearing may be adjourned to be dealt with when there is more time available.
The costs in issue in the divorce proceedings are just the costs in relation to the divorce itself and not any correspondence concerning financial issues or children issues. It is unusual for the costs of an undefended divorce to exceed £800 and is often less.
This note is intended as a general guide to the issues and terminology involved in divorce proceedings. It is necessarily not a comprehensive exposition. The application of these notes will vary according to the facts of individual cases
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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