Divorce

In order to obtain a Divorce you must satisfy the court that the marriage has irretrievably broken down. This can only be done by establishing one of what are often known as the 'five facts'
The court must be satisfied on the evidence it has before it that firstly one of the 5 facts exist and that on this evidence the marriage has broken down irretrievably.

The first of the five facts is adultery. The Petitioner must show that the respondent has committed adultery and that the Petitioner finds it intolerable to live with the Respondent’

Thus to obtain a divorce on this ground the Petitioner must show not only adultery but also allege that he or she finds it intolerable to live with the respondent. It is not however a requirement that is a consequence of the adultery.

Most Divorce petitions are based on unreasonable behaviour. This is the second fact. The section provides ' that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent '. If so there is an entitlement to a divorce.

This is different from the question of whether the Respondent has behaved unreasonably. The question for the Court is whether the Respondent has behaved in such a way that the Petitioner could not reasonably be expected to live with him or her.
The court is not required to pass judgment on whether a person's behaviour is right or wrong, good or bad, reasonable or otherwise. It is simply whether the behaviour is such that the Petitioner cannot reasonably be expected to live with the Respondent.

The third ‘fact’ for divorce is desertion which is rare-the fourth 2 years separation and both parties giving their consent and finally 5 years separation where consent is not required.

There are some special rules which will apply to petitioning for divorce.

Firstly a petition for divorce (but not judicial separation) can not be filed during the first 12 months of a marriage.

Second are the reconciliation provisions. These apply to the behaviour fact and in a slightly different form to adultery petitions:

"where in any proceedings for divorce the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support the allegation, that fact shall be disregarded in the determining for the purposes of section 1 (2) (b) above whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together was six months or less,"

Thus any period of reconciliation under 6 months will be disregarded in establishing whether a marriage has irretrievably broken down.

The Procedure to apply to the Court for a decree of divorce will require the filing at a County Court which has divorce jurisdiction the following documents:

A petition for Divorce in the prescribed form
If there are children of the family under 16 [or over if still in full time education], a special form showing the intended arrangements for the children.
The original marriage certificate (not a photocopy) or a certified copy.
The Court fee. At present this is £180. However fee exemptions or remissions are available for those on low incomes or State Benefits.
The documents filed at Court will be checked by the Court staff, and a copy of the Divorce Petition and Statement of Arrangements for Children sent to the Respondent with a form prepared by the Court for the Respondent to acknowledge service of the Petition. The Respondent must return this form to the Court within 7 days, saying whether he or she accepts that the marriage has irretrievably broken down, and whether they agree with the proposed arrangements for the children.

If the acknowledgment of service is returned indicating an intention not to defend the divorce, the Court will send a copy to the Petitioner, who must then swear an affidavit [sworn statement] to confirm that what is said in the divorce petition is true. This takes the place of a formal attendance before a judge at the Court. The affidavit may be sworn at any Court office free of charge, or before a solicitor or commissioner for oaths, when a charge will be made.

Once the affidavit has been sworn, the divorce is entered on the ‘special procedure’ list for pronouncement of decree nisi. There is no easy going back once this has been done. So long as the Court is happy with the children arrangements, there will be no need to attend Court.

The parties will not be finally divorced at this stage, as the decree must be made absolute. This can be applied for on further application [and payment of a further Court fee of £30] after 6 weeks following the making of the decree nisi.

On pronouncement of decree absolute, the marriage is dissolved and the parties will be free to remarry if they so wish. The pronouncement of the decree absolute has an important effect on any Will made by the parties, and consideration should always be given to making a new Will. Also it is essential that any applications to the Court on ancillary financial matters are made before decree absolute.

Relationship breakdown | Divorce | The Division of Property on Divorce | Payment of Maintenance on Divorce | Nullity of Marriage | Separation | Change of Name | Cohabitees | Domestic Violence | Family Mediation

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