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42% of marriages in Britain end in divorce. The decision to get divorced is likely to have a profound effect on your life and should not be taken lightly.
Whilst you can separate, agree suitable arrangements for children and divide your assets informally, there are a number of pitfalls. Getting remarried may not be on your list of priorities but this may change in the future. Neither of you can remarry (unless a criminal offence is committed!) without a divorce. Yes, you may be able to agree how to divide the finances at the time of separation, but in the absence of a court order setting out what has been agreed, there is always the risk that one of you may apply to the court for further financial provision in the future. You should carefully consider your options with a specialist solicitor and ensure that you have an up-to-date Will. My colleague, Jane Gray, would be pleased to assist in this regard.
Once you have made the decision to divorce, you will need to decide where to divorce. It may be possible for you to divorce in a number of countries. This is an important decision as the choice of country can have significant financial consequences. The 'jurisdiction' to grant a divorce in England/Wales depends on whether at least one of the spouses has a sufficient connection with the country. The rules are complex. Whether the courts in England and Wales have jurisdiction will depend on the parties 'habitual residence' (where you are living and regard as your settled place of residence) and 'domicile' (country you regard as your home).
To commence proceedings in England/Wales, the 'Petitioner' (the person who commences divorce proceedings) must file a 'divorce petition' with the court. You have to show the court that the marriage has "irretrievably broken down" and then prove one of five facts, namely "Adultery", "Unreasonable Behaviour", "Desertion (2 years)", "Two years' separation with consent" and "Five years separation without consent". Despite what many think, the spouse who commits adultery or acts unreasonably is not punished financially as a consequence, unless there has been extreme unreasonable behaviour which significantly impacts the parties' financial position. There is however an assumption, when based on adultery or unreasonable behaviour, that the Respondent should pay the legal costs associated with the divorce proceedings.
The court then sends the Petition to the 'Respondent' with an 'Acknowledgement of Service'. The form asks the Respondent whether he or she intends to defend the petition, whether any claim for costs are disputed and whether they agree with what is said in the petition.
If the 'Respondent' does not accept that the marriage is over, you are of course entitled to defend the proceedings. If you are considering defending a petition you should consult a specialist family law solicitor. Defended proceedings can be very drawn out, extremely stressful, and the legal costs can be very high. Moreover, if your spouse has petitioned for divorce, this is a clear indicator that there has been serious breakdown in the marriage. A Respondent should therefore be realistic and consider their options. Defended divorces are extremely uncommon as there is usually little to gain in doing so.
Once the Petitioner has received the completed Acknowledgement of Service, the Petitioner can then apply to the court for 'Decree Nisi', the interim divorce decree. The Petitioner can apply for the Decree Nisi to be made Absolute once six weeks and one day have passed from the pronouncement of Decree Nisi. In some cases, a Petitioner is advised to wait until the parties have reached an agreement regarding the finances before making this application. The Respondent can apply for Decree Absolute three months after the date on which the Petitioner could first have applied but will only be successful if there is no good reason why the Petitioner did not apply for the Decree Absolute.
Nastassia Burton is Managing Partner at Stowe Family Law Cheshire. If you have questions regarding divorce, or any aspect of Family Law, please email [email protected]. All enquiries will be treated as strictly private and confidential.
Further information and articles on various aspects of Family Law and the Firm can also be found on our Blog at www.stowefamilylaw.co.uk/blog/ . We hold a free legal advice clinic (30 minute appointments) on a daily basis. Please call to make an appointment on 01625 544900.
