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Divorce proceedings are dealt with by the County Court and the Petition can be issued in any County Court.
MINIMUM LENGTHS OF MARRIAGE
Divorce proceedings can be issued after one year of marriage.
GROUNDS FOR DIVORCE
The Court has to be satisfied that there has been an 'irretrievable breakdown' of the marriage before a divorce decree can be granted. 'Irretrievable breakdown' is proved be establishing any one or more of the following facts/grounds:-
The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent (adultery)
The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent (unreasonable behaviour)
The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition (desertion)
The parties of 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 (two years separation with consent)
The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition (five years separation)
Advice and assistance under the Legal Help Scheme is available for undefended divorce proceedings. You will have been assessed and told whether or not you are eligible.
If the proceedings become defended then application for a full civil legal funding may have to be considered. Application for a funding certificate is subject to a means test. If you are not eligible the costs will have to be met by yourself. These will have been discussed with you and payment arrangements made.
The party issuing the proceedings is called the petitioner. The spouse against whom the proceedings are issued is called the respondent.
Where an adultery divorce Petition names the person with whom adultery has been committed that person is called the Co-Respondent. It is not necessary in all cases for the Co-Respondent to be named.
The Petition is the written document issued by the Petitioner setting out all the relevant information and stating the fact/ground upon which a divorce is sought.
THE STATEMENT OF ARRANGEMENTS
The Court has to be given details of the arrangements proposed for any children of the family under 18, Therefore where there are such children involved the Petitioner must file with the Petition a Statement of Arrangements giving information about where the children are living, where they go to school, what residence/contact and financial arrangements are proposed etc.
However, it is usual before filing the Statement of Arrangements in the Court to send the documentation to the Respondent. It is hoped that the Respondent will agree with the arrangements stated and sign the documents to this effect.
A Statement of Arrangements signed by both parties will assist the smooth passage of the divorce when the papers eventually come to the District Judge for consideration.
ISSUE AND SERVICE
The Petition and Statement of Arrangements are sent to the chosen Country Court. Copies are then sent by post to the Respondent together with a document called the Acknowledgement of Service.
The Acknowledgement of Service consists of a series of questions mainly enquiring whether the Respondent intends to contest the divorce.
The Respondent hopefully completes the Acknowledgement of Service and returns it to the Court.
If the Respondent does not return the Acknowledgement of Service to the Court then the personal service of the Petition and Statement of Arrangements may have to be attempted through the Court Bailiff or a privately engaged process server. This is because definite proof is required by the Court that the Respondent has received the divorce papers before any further steps can be taken in the proceedings.
UNDEFENDED OR DEFENDED
If the Respondent completes the Acknowledgement of Service indicating that the divorce is NOT to be defended or if proof is available that the papers have been served on the Respondent and no steps to defend have been taken within a period of 28 days from service then the Petitioner can take the next steps in the proceedings.
If the Respondent completes the Acknowledgement of Service indicating that the divorce IS to be defended then the proceedings become complicated. It is beyond the scope of this information sheet to explain the consequences. Specific information and advice will be given to you if the situation arises. However, the vast majority of divorces today proceed undefended.
The Affidavit is a written statement under oath by the Petitioner giving evidence in support of the Petition. It is in a standard form. The Affidavit is completed once the divorce is in a position to proceed undefended.
DISTRICT JUDGE'S CERTIFICATE
Once the Court receive the Affidavit in Support this document together with the Petition and Statement of Arrangements is considered by the District Judge.
If the District Judge is satisfied that:
the ground for divorce is proved
arrangements for any children of the family have been agreed between the parties
then he will grant his Certificate.
The Court will list a date for pronouncement of the Decree Nisi and you will be informed
The Decree Nisi will be pronounced automatically by the Judge on the date fixed.
You will not need to attend.
The Decree Nisi is an intermediate Order. It does not end the marriage.
The Decree cannot be made Absolute until at least 6 weeks have elapsed since the date of the Decree Nisi.
The Petitioner applies to the Court on a standard form for the Decree Absolute which is made immediately.
A copy of the Decree Absolute will be sent to you.
The Decree Absolute ends the marriage and leaves both parties legally free to re-marry whenever they so wish.
It is important that on Decree Absolute you review your Will or consider making one, especially if there are children involved. Please ask your Solicitors for more information. You may be able to obtain a Will free of charge.
The Decree Absolute finalises the divorce itself. However other matters may still remain to be resolved such as division of the matrimonial home or other matrimonial assets, maintenance for one of the parties. These matters will be dealt with in separate ancillary relief proceedings.
- A divorce generally takes 4-6 months and it is not necessary to go to Court at all, the whole procedure is done by paperwork.
- Even after parties are divorced, either party can still make a claim against the other either during their life-times or against their estate on death eg after a lottery win! This can be prevented by obtaining a "clean break" consent Order.
- If a divorce is not wanted or possible immediately finances can still be sorted out and a Deed of Separation drawn up.
- Pensions are important - they could be worth even more than the family home. They must be looked at as part of any settlement.
- A Living Together Agreements is an agreement between a cohabiting couple to sort out the day-to-day workings of living together and to give protection for both parties from what ever might happen to the relationship in the future.
- Unmarried fathers do not automatically have any rights save in limited circumstances. It is however possible to obtain those rights, CBA Law can help you obtain those rights.
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