To obtain a divorce in England and Wales the following stages need to be followed.

Applying for a divorce


  • What do the terms Petitioner and Respondent mean?
  • Should I name the other woman?
  • He has been working abroad should the proceedings be dealt with in England?
Either spouse can apply to the court for a divorce. The application is called a Petition. The person who makes the application is called the Petitioner, and the other party to the divorce is called the Respondent. Other people may be involved in the case, for example anyone named in the Petition as having committed adultery with the Respondent is called the Co-Respondent. The Family Law Protocols nevertheless discourages the involvement of a Co-Respondent in the process.

The courts in England have jurisdiction to grant a divorce if either the Petitioner or the Respondent is domiciled in England and Wales when the proceedings begin or if either have been habitually resident in England and Wales for one year immediately before the petition is filed at court. There are other circumstances in which the courts have jurisdiction but the rules are complicated and hence we will need to discuss them with you if appropriate to your case.

The Petition can be sent to any divorce county court. It does not have to be sent to the local court, although that may be more convenient for the parties.


Issuing a Petition at a Divorce County Court


  • I know of adultery and behaviour but are there any other circumstances in which I can start a divorce?
  • Do I need my spouse's consent?

The Petition has to establish that the marriage has irretrievably broken down in one or more of five ways, which are:-

1. Adultery by the Respondent and the Petitioner finds it intolerable to live with the Respondent.
2. Behaviour by the Respondent which means that the Petitioner cannot reasonably be expected to live with the Respondent.
3. Desertion of the Petitioner by the Respondent for a period of 2 years.
4. Separation for 2 years and the parties agree to divorce.
5. Separation for 5 years there is no requirement for the Respondent to agree.

Can I make a claim for costs? Is there anything I should do before I issue the Petition?

The Petition must also set out other information required by the court such as where the parties live and whether they have any children. If the Petitioner wishes the Respondent or Co-Respondent to pay the costs of the Petition, the Petitioner must claim the costs in the Petition; it is not possible to claim such costs after the divorce has been granted. It is advisable to send a copy of the draft Petition to the Respondent before it is issued, in the interests of co-operation between the parties.

Is it just the Petition or are there any other documents that are required?


In addition to the Petition, the following documents must also be sent to the court:-

  1. Copies of the Petition for service on the Respondent (and any Co-Respondent) and a copy for the court to retain.
  2. A Statement of Arrangements for any children of the family who are under the age of 18 (plus copies), which sets out the plans for the children; such as where they will live, where they will go to school and the contact that they will have with the other parent.
  3. The marriage certificate.
  4. A Reconciliation Statement. This confirms that the solicitor has explained about opportunities for reconciliation and agencies that can help.
  5. The court fee (currently £340.00).

What does the court do when they receive my documents?

The court will process the documents, which involves checking and then "issuing" the Petition (stamping it to show that the fee has been paid and that a court file has been opened) and the other documents. The court will then send the Petitioner a Notice of issue of Petition, telling the Petitioner when the Petition was sent to the Respondent and giving a divorce case number.

Service on the Respondent by the court or your solicitor


  • What does 'service' mean? What is being 'served'?
  • What do I do if there are complications?

The Respondent and any other parties have to be provided with various documents this is called 'service'. The documents are:-
  1. The Petition.
  2. The Statement of Arrangements for Children (this is served only on the Respondent, even if there is a Co-Respondent who will be served with the other documents).
  3. A Notice of Proceedings (which contains brief advice to the Respondent on the divorce procedure).
  4. An Acknowledgement of Service (this is a question and answer form which the Respondent has to fill in and send back to show that they have received the Petition, agree with its jurisdiction and if their consent is required, it is provided within this form. They can also comment on any claim for costs and raise any points generally either on the Petition or the Statement of Arrangements).
Service usually involves sending copies of the Petition and other documents through the post to the Respondent or to the solicitor instructed by the Respondent. This is usually done by the court. The Petitioner cannot serve the Respondent personally, but it can be done in person by the court bailiff or a privately employed 'process server'. The overall intention is that the court wants to know that the Respondent is aware that he/ she is being divorced and that the Petitioner has done their best to bring the papers to the Respondent's attention. If there are any special problems in effecting service, the court may rule that everything possible has been done, and proceed without actual service. If service upon the Respondent becomes problematic, then at Blackdown Family Law Solicitors we can resolve matters by the most effective and economical steps required.

Acknowledgement of Service


  • I have just received various divorce papers including an Acknowledgement of Service. What do I do?
  • I do not agree with the Petition, the contact arrangements or the claim for costs.
The Respondent should return the Acknowledgement of Service form within 8 days of the date of service.
(More time is available if the Respondent lives outside England and Wales).

At this point and within this document the Respondent should indicate whether or not he or she:-

  1. Intends to defend the divorce.
  2. Agrees with the Statement of Arrangements for Children, in terms of with whom the children will live, where they will live, contact arrangements and schooling. If the Respondent does not agree then he/she must set out the alternative arrangements that they think will be in the children's best interests.
  3. Agrees to pay the costs of the divorce (if they have been claimed) and if not, state their objections.
  4. If the Respondent disagrees with the Petitioner about the plans for the children then the court will consider those issues separately. This means that the Judge may require the parties to attend a short hearing. The intention is to try to resolve any issues without them resulting in further litigation. The Judge may also require the parties to attend a separate hearing to make a decision on any claim for costs. It should be emphasised that either of these hearings/appointments can be resolved without legal representation.

Answer


  • In the Acknowledgement of Service, I have indicated that I want to defend. What do I do next?

If the Respondent wishes to defend the divorce, then an Answer must be filed with the court within 29 days of the date on which he or she received the Petition. The fee for filing an Answer is currently 230.00. The Answer is not necessary unless the divorce is being defended. Less than 1% of divorces are defended. This is because the divorce then becomes expensive for both parties, attendance at Court is required, statements must be prepared and the divorce could result in a fully contested final hearing. If one party really is determined to pursue the divorce, is it really wise to try to keep the marriage together? A final hearing is very acrimonious.

Undefended Divorce


  • So, my husband agrees with the divorce and has returned the signed Acknowledgement of Service what do I do next?
  • What is an Affidavit?
  • When the Judge has all of the papers, what does he/she do?
  • What if there is a dispute about arrangements for the children?

Once the Acknowledgement of Service has been returned to Court indicating that the Respondent does not intend to defend the proceedings, the Petitioner prepares an Affidavit to confirm the factual content of the Petition. This is a sworn statement which must be signed in front of a solicitor or an officer of the court; there is a small fee (currently 5.00 for the statement and 2.00 for each exhibit). Normally, the signed Acknowledgement of Service is attached to the Affidavit as an exhibit because it proves that the Respondent has received the papers and indicates his/her intentions.

The Affidavit is sent to the court, to be checked by the court staff, together with the form called a Request for Directions (Special Procedure), which is a document asking the court to process the divorce. This process involves the District Judge checking that all of the necessary steps have been followed and that the Petitioner has shown that he or she is entitled to a divorce.

The District Judge considers the documents in his her own chambers and not in open court. This is the first time that the Judge will have seen the papers as previously they will have been processed by the court staff. The Judge only becomes involved when it is clear that the divorce is actively proceeding and the Respondent has been served with the papers.

If satisfied that the Petitioner is entitled to a divorce, the Judge will grant a Certificate of Entitlement to a Decree. If not satisfied, the Judge will offer the Petitioner the opportunity to file further evidence. It is unusual for a District Judge to require further evidence and only tends to call for this if the allegations are unclear or somewhat modest in nature or alternatively, if there has been a mistake in terms of the legal requirements.

When certifying entitlement to a decree, the court will fix a date for the pronouncement of the Decree Nisi in open court. There is no need to be concerned about this as it simply involves a member of the court staff reading aloud a list of the parties to various divorces in much the same way as the banns are read to an intended marriage. It is not necessary to attend if the divorce is undefended.

The District Judge must also consider the Statement of Arrangements for any children of the family. The Judge can either certify that the court need not exercise its powers in relation to the children, or require further consideration of the arrangements (a section 41 appointment). If the arrangements for the children are agreed, it is unlikely that the court will challenge them, but if the documents show that the arrangements are not agreed, then on rare occasions the Petitioner and the Respondent may be asked to attend a section 41 appointment to explain the areas of disagreement. The Judge may require further evidence to be filed in the form of statements or may require preparation of a welfare report concerning the children by a Children and Family Court Advisory Support Service Officer (CAFCASS- see section on Children). Equally rarely, the court may refuse to grant Decree Absolute if it is not satisfied with the arrangements for the children.

Decree Nisi


  • What is a decree Nisi?
The Decree Nisi is the first of two decrees which are needed for divorce, and shows that the irretrievable breakdown of the marriage has been proved to the satisfaction of the Judge. It is pronounced in open court on the date fixed but neither party should attend. Afterwards the court will send the Decree to the parties. The Decree Nisi is not evidence that the divorce proceedings have concluded.

Decree Absolute


  • I want it all over how long before I can obtain my Decree Absolute?
  • Are there any good reasons to delay applying for the Decree Absolute?
  • I am the Respondent and my wife has done nothing for months now about the Decree Absolute. What can I do?
  • Do I need a Will?

Six weeks and one day after Decree Nisi, the Petitioner is entitled to a Decree Absolute, but has to submit a request to the court (a standard form needs to be completed).

Only after a further three months following the said six weeks and one day is the Respondent allowed to apply for a Decree Absolute. This rarely happens and circumstances where the Respondent concludes the divorce are when the Petitioner is unnecessarily stalling the proceedings. The court will grant an application by a Respondent unless there is a good reason not to and a good reason would include, for example, that financial issues have not been resolved and that a divorce in the absence of this would cause the Respondent severe financial hardship.

In either instance, the fee for Decree Absolute is currently 45.00.

If the application for Decree Absolute is made more than 12 months after Decree Nisi, the District Judge will require an explanation for the delay in the form of an Affidavit. This is not however an onerous task.

Decree Absolute is a procedure performed by the court, and again, the parties are not required to attend. The court will send the Decree to both of them and it should be carefully retained. Once the court has made the Decree Absolute the couple are divorced and are free to re-marry using the Decree Absolute as evidence of their divorce.

The Decree Absolute contains a warning that "divorce affects inheritance under a Will". If new Wills have not already been made by each party following their separation, then it is important that this is done, and in particular that provisions are in place for the care of children in the event of the death of one or both parties. For advice on preparing a new Will, please talk with us and see our website section.

Costs


  • The Respondent is at fault and I want to claim costs. Are there any reasons not to do so?
It is often preferable to make a claim for the costs of the divorce proceedings. Remember that these costs are generally fairly modest and do not involve the more substantial costs of achieving a financial settlement. Sometimes, it is wise for the Petitioner not to pursue a claim for costs if he/she needs to negotiate something which is to the Petitioner's advantage, for example, obtaining confirmation from the Respondent that he/she has committed adultery (in which case the discontinuation of a claim for costs can be used as a bargaining tool). Overall, this may result in a saving in costs to the Petitioner. It all depends on the circumstances of the case and at Blackdown Family Law Solicitors; we can advise on how best to proceed in an economical manner.


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John Turner, the Principal of Blackdown Family Law Solicitors, is a highly skilled solicitor who has dealt with divorce on a daily basis for over 18 years .He will advise you on the most cost effective and efficient way of proceeding with the divorce taking into account all the circumstances of your case. He understands that divorce can be an emotional and a testing time for all those involved and is there to help shoulder the burden for you so that you can begin the process of rebuilding your life.

In 2004, John achieved the distinction of Accreditation as a Family Law Specialist on the Resolution Panel (formerly the Solicitors Family Law Association) for Advanced Financial Provision, due to his experience and technical knowledge.


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