Divorce & Separation
In the unfortunate event that a marital relationship breaks down there are two routes
open to the parties as to the course of action they may follow, these being Divorce
or Separation.
Divorce
If your marriage has broken down, we will work with you to achieve the best arrangements
for you and your children.
What are the grounds for divorce?
Where the marriage relationship has completely broken down one of the parties may
decide to pursue a divorce. The party issuing the divorce proceedings
is the Petitioner and the other party is the Respondent.
There is only one ground for a divorce which is that the marriage relationship has
irretrievably broken down. The Court will not grant the Petitioner’s request for
a divorce and hold that the marriage has irretrievably broken down unless one of
the following five facts have been satisfied.
- That the Respondent has committed adultery with a named or un-named Co-Respondent
and the Petitioner finds it intolerable to live with the Respondent.
- That the Respondent has behaved in such a way that the Petitioner cannot reasonably
be expected to live with the Respondent.
- That the Respondent has deserted the Petitioner for a continuous period of at least
two years immediately preceding the presentation of the petition.
- That the parties to the marriage have lived apart for a continuous period of at
least two years immediately preceding the presentation of the petition and that
the Respondent consents to a decree being granted.
- That the parties to the marriage have lived apart for a continuous period of at
least five years immediately preceding the presentation of the petition. It should
be noted that there is an absolute bar on either of the parties seeking to issue
divorce proceedings within the first year of their marriage.
What is the procedure?
Divorce Petition
Once the divorce petition has been drafted and approved by the Petitioner a copy
will usually be sent to the Respondent for approval before it will be lodged with
the Court. The original copy, or a Certified Copy, of the Marriage Certificate must
also be sent to the Court with the divorce petition. Where there is a child under
the age of 18 years involved in the marriage, the Petitioner must also complete
the Statement of Arrangements for Children form when preparing the divorce petition.
Statement of Arrangements for Children
The Statement of Arrangements for Children form acts to provide the Court with details
of the child, their home and living arrangements, their schooling and education
and who is to have the day-to-day care and responsibility of the child. The Statement
of Arrangements for Children form will also confirm the arrangements for contact
between the child and the non-resident parent and any agreement that may have been
reached in respect of child maintenance.
Service of Petition and Acknowledgement of Service
The Court will then forward a copy of the petition (and Statement of Arrangements
for Children form where appropriate) to the Respondent together with the Acknowledgement
of Service form. The Respondent must then complete and return the Acknowledgement
of Service form to the Court within the specified period detailed on the accompanying
guidance sheet. It is advisable for the Respondent to seek independent legal advice
at this stage, if they have not already done so.
Failure to Acknowledge Service
In the event that the Respondent fails to return the Acknowledgement of Service
form to the Court it is possible for the Petitioner to request that the Court Bailiff
serve the divorce papers on the Respondent personally. Where it is necessary for
the Court Bailiff to serve the papers on the Respondent the Court Bailiff will file
a formal statement with the Court confirming that the divorce papers have been successfully
served. The Respondent must then again complete and return the Acknowledgement of
Service form to the Court, but in the event that the Respondent still fails to do
so the Court may then deem that service has in fact taken place and allow the divorce
to proceed.
Affidavit in Support of Petition
Once the Acknowledgement of Service form has been returned to the Court, a copy
of the form is then forwarded to the Petitioner who must then complete their Affidavit
in Support of Petition. The Affidavit in Support of Petition must be sworn by the
Petitioner and witnessed by either a Court official or an independent solicitor.
The Petitioner must then send the Affidavit in Support of Petition to the Court,
together with the Request for Directions for Trial form.
Decree
The Court will then consider the Petitioner’s application for a decree in light
of the documentation and information filed as part of the divorce proceedings. If
the Court has any queries or concerns, particularly regarding the arrangements for
the child, it has the jurisdiction to refuse to grant a decree until such time as
these queries or concerns have been satisfactorily resolved.
Decree Nisi
Provided the Court is satisfied with the documentation and information filed it
will then confirm the date upon which the Decree Nisi is to be pronounced. Both
parties will receive notification of this date and unless one of the parties wishes
to defend the divorce or any part of the proceedings, there is no need for either
party to attend the Court on the date of pronouncement.
The Court will grant the Decree Nisi in open Court and copies of the Decree will
be sent to both parties to the divorce proceedings. The Petitioner must wait for
a minimum period of six weeks before they are apply to submit the application for
the Decree Nisi to be made Absolute to the Court.
Decree Absolute
Upon the granting of the Decree Absolute by the Court both of the parties are free
to remarry should they wish to do so. Again copies of the Decree Absolute will be
sent to both parties to the divorce proceedings that were concluded upon the date
stated on the Decree Absolute.
In the event that the Petitioner does not apply for the Decree Nisi to be made Absolute
and the Respondent wishes to submit the application, the Respondent must wait an
additional period of three months from the date upon which the Petitioner could
have first applied. The procedure for the Respondent submitting the application
for the Decree Nisi to be made Absolute is not as easy and as straightforward as
that for the Petitioner and it is advisable that the Respondent seek independent
legal advice in such circumstances.
Separation
In some cases of marital breakdown the parties are in agreement that they do not
wish to pursue a divorce and would rather separate. There is no reason as to why
the parties should not separate and it will often give each party the time and space
to consider their personal future and also the future of their family. It may also
lead to the parties reconciling.
However, in some cases separating may cause to leave a lot of issues unresolved,
particularly financial matters, and in such cases it may be appropriate for the
parties to consider entering in to a Separation Agreement.
Separation Agreement
A Separation Agreement is basically a contract that both parties must consent to
enter in to and which is subject to the principles of Contract Law. It is therefore
very important that both parties seek independent legal advice if they wish to enter
in to a Separation Agreement.
A Separation Agreement is an agreement between the parties to live apart and will
often include other terms relating to the division of the marital assets and former
matrimonial home, child maintenance payments (where appropriate) and may also include
provisions relating to the arrangements for contact and the residence of any children.
The advantage of a Separation Agreement is that it will act to resolve a number
of the contentious issues arising from the breakdown of the marriage and will not
prevent the parties from attempting to reconcile if they so wish.
However, a Separation Agreement will not achieve the same degree of finality as
a Court approved Consent Order and problems may arise where one party seeks to enforce
the terms of the Separation Agreement against the other who has defaulted.
If you would like to arrange an appointment to see one of our Family Law Team to
discuss this or any other family law issue, please e-mail
family@chattertons.com telephone one of the numbers given below.
Contact Details
Family Team