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Tuesday 18th November 2008 - 2:46 pm |
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Regulated by the Solicitors Regulation Authority. Authorised and regulated by the Financial Services Authority. |
 Home
 Personal Law
Family Law
Divorce & Separation
Divorce & SeparationIn 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. 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 click here or telephone one of the numbers given below. DivorceIf 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.
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 PetitionOnce the divorce petition has been drafted and approved by the Petitioner 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 ChildrenThe 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 ServiceThe 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 ServiceIn 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 PetitionOnce 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. DecreeThe 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 NisiProvided 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 AbsoluteUpon 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. SeparationIn 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 AgreementA 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. Contact Details
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