Guide to divorce
The decision to begin divorce proceedings is one of the most difficult decisions that one can make in life and so clients will often seek initial legal advice before deciding whether or not to proceed. Depending on your particular needs we will discuss with you the arrangements that need to be made for your children in terms of their residence and care, the financial provision that the court would consider appropriate for the maintenance and support of the less wealthy spouse and the grounds upon which a divorce may proceed or indeed be defended. We deal with each of these matters separately to ensure that they each receive the attention they require and to ensure that the best interests of the children remain the absolute priority and entirely separate from any financial dispute. Please also see our guide to financial provision upon breakdown of marriage, our guide to child financial provision upon marriage breakdown and our guide to arrangements for children upon relationship breakdown.
The divorce process itself is largely a paper exercise by which the court is asked to agree to pronounce the end of the marriage on the grounds of the other party’s adultery, behaviour, separation for a period of more than two years (with consent), five years of separation (without consent) or desertion. There is currently no such thing as a ‘no fault divorce’ in England and Wales as there has been in other jurisdictions for some time. As a result the petitioner will need to provide sufficient detail of the irretrievable breakdown of their marriage within their petition to satisfy the court that a divorce should be granted. However to avoid any unnecessary dispute, it is often possible for both parties’ solicitors to seek to agree these particulars in advance of issue.
It may be that additional protection should be put in place, such as financial freezing injunctions or provisions to prevent domestic violence. These should be put in place early on and, if necessary, before the spouse is notified of the intention to divorce.
Despite the possible psychological effects of one party acting as the petitioner and the other acting as the respondent, there is no substantive legal advantage or disadvantage to assuming either role, although there may be some procedural advantage to taking the initiative. Equally, it will not have any impact upon the financial or children proceedings that may follow. The major exception to this is where there may be more than one country’s jurisdiction that may govern the case. Since the treatment of finances on divorce may vary widely between jurisdictions, making sure you put your divorce through the right one may make a fundamental difference to the outcome and being the first to petition may make all the difference.
Your spouse will need to be served with the petition and will be asked to acknowledge service to the court. If they refuse, service can be affected personally by process servers or by what is known as substituted service.
Once an acknowledgement has been filed the petitioner can apply for the decree nisi, which will be pronounced in open court (but without either party needing to be present) if the grounds of the petition are accepted. After this point the court will have jurisdiction to make a legally binding order in relation to the parties’ finances which, once finalised, will be followed by an application for decree absolute [see our guide on finances upon relationship breakdown]. This final decree has the affect of formally dissolving the marriage and freeing both parties to remarry if they so wish. This final decree cannot be applied for until at least 6 weeks and 1 day from the decree nisi being pronounced. However, it is usually obtained some time after that once a financial settlement has been negotiated and/or approved by the court.
If you are interested in discussing a divorce please see How Vardags can help with a divorce.