What is the procedure for a basic straight forward divorce?
Solicitor Richard Breslin outlines the basic divorce procedure.
Basic Divorce Procedure
The rules in respect of divorce are governed by the Matrimonial Casues Act 1973 and the Family Procedure Rules 2010. The updated Family Procedure Rules which came into effect on in May 2011 implemented a number of changes, particular to the format of documents to assist the increasing number of litigants in person envisaged by the reduction in availability of legal aid due to be implemented by the Legal Aid, Sentencing and Punishment of Offenders Bill currently being pushed through the Commons.
Under English Law there is only one ground for divorce that being the irretrievable breakdown of the marriage. Section 1(2) of the Act sets out the reasons on which this may be demonstrated by a person seeking a divorce, "The Petitioner" as follows:
- The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
- The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
- The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition.
- 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 the Respondent consents to a decree being granted.
- The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.
As such a person applying for divorce cannot rely on their own failings to be base the divorce but must do so on the fault of the other party.
In order to commence proceedings the Court require the relevant information, including the parties" details, the basis for the divorce, details in respect of any relevant children. This information is contained in the divorce petition and statement of arrangements for children.
It is best practice to seek the co-operation of the other side at the earliest opportunity and provide copies of draft documentation before lodging the same at Court. This allows appropriate amendments to be made and limit any contentious issues. Co-operation on such issues builds a conciliatory atmosphere which assists in resolve other issues surrounding the marriage breakdown, such as finances or contact with children.
Once the documentation has been processed by the Court an official copy along with acknowledgment of service will be sent to the Respondent, the other party. They should then return the acknowledgement of service to Court.
Delay can often occur at this stage as a Respondent may be slow to return the acknowledgment of service or simply ignore it completely. If the acknowledgment of service is not returned with 14 days it is then possible to apply to the Court for other forms of service. This may for example include bailiff service or substituted service.
Once service has been affected it is then possible for the Petitioner to proceed to the next stage, to apply for decree nisi. The application for decree nisi requires a supporting document in support. This used to be an affidavit confirming the relevant details in the papers are true and identifying the signature of the Respondent on the acknowledgment of service. This is now contains a statement of truth and as such no-longer needs to be sworn on oath.
The application for decree nisi is in due course considered by a District Judge who if satisfied that an irretrievable breakdown of the marriage has been demonstrated will issue a certificate to that effect and set a date for pronouncement of decree nisi. Pronouncement of decree nisi does not require a Court attendance. The decree nisi and any documents are forwarded to the parties in the post.
After the expiry of 6 weeks and one day the Petitioner can then apply for the decree absolute, which is the divorce and replaces the marriage certificate.
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