A divorce cannot be applied for within the first year of the marriage. Following that, strictly speaking there is only one reason for divorce – that the marriage has irretrievably broken down. However, it is must be presented as having broken down in one of five ways:
- Adultery by the respondent (you cannot file for divorce on the grounds that you committed adultery)
- Unreasonable behaviour
- Desertion by the respondent for two years or more
- Separation for two years, and the respondent agrees
- Separation for five years
Three parts to a divorce
In legal terms there are three distinct parts to a divorce:
- The divorce itself. This is effectively the ending of a contract (the marriage), and allows both parties to remarry if they wish. The legal act ending the marriage is known as the ‘decree absolute’
- In the simplest terms, who gets what and how much maintenance will be paid. This used to be known as ‘ancillary relief’ and you may still see this term on some legal documents. From 6th April 2011, the official court term became ‘Application for a Financial Remedy’.
- Arrangements around the children if any – custody, maintenance and access rights for the party that does not have custody
- One party submits an ‘Application for a Matrimonial Order’, including where applicable, the ‘Application for a Financial Remedy’ and ‘Statement of Arrangements for Children’. The party who submits the Application is known as the Petitioner.
- The application is received by the Court who issue the case, and then serve a copy of the application on the other party, known as the ‘Respondent’ who has to file an acknowledgement of service – this is just to say that they have received the application and indicate whether they will accept or defend the allegations in the application. In the vast majority of cases a divorce will be undefended.
- Once the Court has received the Acknowledgement of Service, they send an affidavit to the Applicant to be sworn. This asks the Applicant to confirm that they still wish to proceed with the divorce, and that the details in their original application are correct. This is then returned to the Court.
- A District Judge considers the application, acknowledgement of service, and the affidavit. If satisfied that the married has broken down irretrievably then the Judge provides a date for the pronouncement of ‘decree nisi’.
- ‘Decree Nisi’ is little more than the reading out of the names of the parties. Neither party is required to attend, although it is in ‘open court’ i.e. accessible to the public.
- Six weeks and one day after the ‘decree nisi’ has taken place, the applicant may apply for a ‘decree absolute’. Again, the Court will consider the case and confirm a date for this. Once Decree Absolute is declared the marriage is legally at an end.
Note that the degree absolute cannot be granted until all outstanding matters including the ‘Application for a Financial Remedy’ have been resolved.
If both parties agree on all three areas, then there is usually no need to get a lawyer involved. Divorce papers can be obtained from your nearest high court, and the various court fees and costs should be no more than about £350. An ‘uncontested’ divorce can be over in as little as 16 weeks and neither party has to appear in court.
However if there is disagreement and neither side is willing to concede then the ‘Application for a Financial Remedy’ can soon lead to rapidly mounting legal fees that should be considered in the context of what is at stake. It doesn’t make sense to refuse to back down and incur £10,000 of legal costs in the process if what is at stake is worth £10,000. Obviously it is a different consideration if the assets at stake are worth £100,000.
Similarly, the even more emotive area of custody and maintenance orders for the children can lead to protracted legal battles, and it was partly in an attempt to reduce these as well as modernise the whole area of family law that the new Family Proceedings Rules came into force on 6th April 2011.
Family Proceedings Rules
The new Rules were intended to make family law much more user friendly and accessible.
A core theme was to encourage much greater use of alternative dispute resolution – processes such as mediation that try to bring the two parties together in agreement before the case reaches court.
Alternative dispute resolution
For example, before an ‘Application for a Financial Remedy’ can be accepted by the courts, the couple must attend a ‘Mediation Information and Assessment Meeting’, whether separately or together. This is run by a trained family mediator who will attempt to help the couple come to a mutually agreeable resolution. It is only with their signed confirmation that the Meeting took place and either mediation is not suitable for the couple, or that the respondent refused to attend, that the Application will be accepted by the courts. For details on how to find your nearest mediators, please contact the Citizen’s Advice, or your local courts.
Even when legal proceedings are in full flow, the Family Proceedings Rules dictate that every time the case is before the court, the court must consider again whether alternative dispute resolution is appropriate. If yes, then proceedings will be adjourned so that the former couple can either obtain information about alternative dispute resolution, or attend a mediation session or other form of alternative dispute resolution. Unlike the initial Meeting, these are not compulsory and either party may refuse. However to do so would incur ever greater legal costs and further drag out the process so that there is a strong incentive to accept the proposed alternative dispute resolution.
Alternative dispute resolution’ is defined as ‘methods of resolving a dispute, including mediation, other than the normal court process.’ Most are variations of mediation, and to cover them in detail is beyond the scope of this article. What they all have in common is the objective of seeking a quicker and less expensive solution than going through the full court process – with obvious benefits for both parties, any children, as well as the courts themselves.
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