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Divorce and Separation

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In English law there is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as ‘the Petitioner’ and their spouse is called ‘the Respondent’.

To satisfy the court that there has been an irretrievable breakdown the Petitioner must prove one of the following five facts:

 

(a) The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent

(b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.

(c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.

(d) The parties have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted. This is commonly used as a “no fault” reason.

(e) The parties have lived apart for a continuous period of at least five years immediately before the start of the divorce. No consent is required for this ground, but the finalisation of the divorce may become delayed if satisfactory financial arrangements are not in place.

 

The process of divorce is begun by filing the petition with the court with the original marriage certificate.

 

Following the filing, copies of the documents are sealed by the court and sent out by post to the other party, the Respondent.

 

The Respondent then has 7 days from receipt of the papers in which to complete the form of acknowledgement, confirming receipt of the divorce papers. If (s)he does not do so, then it may be necessary to arrange for a further set of papers to be issued so that the Respondent can be personally served by an enquiry agent, process server or the court bailiff.

 

The acknowledgement of service will say whether the Respondent intends to defend the case and on the assumption that (s)he does not, the court will then send out a copy of the acknowledgement to the Petitioner or his/her solicitors so that they can continue the process as an undefended divorce.

 

Upon receipt of a copy of the acknowledgement of service, the next step is to prepare a statement in support of the petition and to make a formal request for the judge to consider the evidence.  The judge will decide firstly if he satisfied with the evidence and if satisfied, he will issue his certificate of entitlement to a decree. If he is not satisfied, he may call for further evidence or for more information. The judge will also make a preliminary decision on whether the Petitioner is entitled to an order for costs. With the judge’s certificate of entitlement, the court will set a date for the pronouncement of the decree nisi.

 

Following the pronouncement of the decree nisi, the orders are sent out by post to both parties and/or their solicitors.

If you are the Petitioner, six weeks after the pronouncement of the decree nisi, you can apply for the divorce to be made final with a decree absolute.

If you are the Respondent, you cannot apply for the decree nisi to be made absolute until a further three months have expired from the date the Petitioner could have applied for it to be made absolute i.e. approx 19 weeks after the decree nisi date.

There are usually good reasons why the decree absolute is not applied for immediately, the most common being financial. You may lose out on pension and death benefits once you are divorced. Until the financial claims are settled, you may be advised to delay applying for the decree absolute.

 

Once the decree absolute is issued, the process is finished; you are divorced, and free to remarry.

 

On average, you should allow for between four and six months to conclude a divorce assuming there are no other factors to be considered such as financial claims.

 

Fullers Family Law Practice

06/14

 

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Martin Fuller

Martin Fuller

Martin Fuller

Martin Fuller

 

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