Divorce, the Final Frontier?
Obtaining a divorce does not have to be a complex
process; the process is laid out below.
But remember, that divorce DOES NOT invalidate any Will you have
made. Certain parts may no longer be
valid but the rest of the Will still stands!
If you want advice on the effect a divorce or separation has on your
Will, or if you don’t have one then please contact us on 01752 607040 for a
FREE Review at our office in Stoke Village.
The advice below is general; this is NOT a service
we offer at The Will Centre.
If you need a referral to a divorce expert please
let us know.
Q. When can I start divorce proceedings?
A. Divorce proceedings cannot be commenced until
you have been married for at least a year.
Q. How is the divorce process started?
A. The person wishing to begin the divorce
proceedings must file an application at Court known as a ‘petition’. The person
who files the petition is referred to as the Petitioner, and the person who
receives the petition is referred to as the Respondent.
Q. What are the grounds I can use to get a divorce?
A. There is only one ground for divorce and that is
the irretrievable breakdown of the marriage.
The fact that the marriage has irretrievably broken
down is evidenced in the petition by citing one of five possible facts:-
- Adultery
- Unreasonable behaviour
- Two
year separation with mutual consent
- Desertion
by your spouse
- Five
years’ separation whether or not your spouse consents
Q. Should I be the Petitioner or the Respondent?
A. A divorce petition is often seen as a means to
an end and in some circumstances it can be politic to agree to be the
Respondent, rather than to commence the proceedings (i.e. be the Petitioner).
However, generally, it is preferable to be the
Petitioner for several reasons. Firstly, it gives you more control over the
timetable of the divorce itself. Also the Petitioner may obtain an order for
costs against the Respondent on the two fault-based petitions namely adultery
or unreasonable behaviour.
It is possible for the parties to determine who is
to issue the petition in advance by providing for this in either a Pre-nuptial
or Post-nuptial Agreement. For further information please see our Briefing Note
on Pre-nuptial Agreements.
Q. How long will a divorce this take?
A. Anywhere between three to six months to obtain a
divorce if there are no delays; longer if the financial arrangements are not finalized
within this timeframe.
Q. Are divorce proceedings defended these days?
A. Not usually these days. The Respondent has to argue either that the
marriage has not irretrievably broken down and/or refute the particulars on
which the Petition is based.
A Respondent who accepts that the marriage has
broken down may still choose to defend the petition and file their own petition
(technically referred to as a cross petition) setting out his or her grounds
for the breakdown of the marriage. This will increase the costs of the
divorce considerably for both parties but can, on occasion, be appropriate. It
is also sometimes possible to agree that the Decree should be pronounced on
both petitions, called cross Decrees.
Q, What is the Procedure?
A. The procedure is as follows:
1.
Lodging the
Petition
2.
Service of the
Petition
3.
Applying for
Decree Nisi
4.
Filing Documents
at Court
5.
Decree Nisi
(does not end the marriage)
6.
Application for
Decree Absolute (ends the marriage)
Six weeks and one day after the Decree Nisi is
pronounced, the Petitioner can apply for the Decree Absolute. It is only when you
receive this Decree, that you are finally divorced.
Q. I’ve heard of something called a ‘Judicial
Separation’; what is that?
A. It is possible to start judicial separation
proceedings, or nullity proceedings, if you have been married for less than a
year (or later if appropriate). Judicial
separation proceedings will not terminate the marriage and you would not be
free to re-marry at the conclusion of the proceedings. This is usually most
appropriate for people who have religious objections to a divorce.
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