Divorce proceedings are commenced by one party to the marriage known as the Petitioner. The other party is known as the Respondent.  In every case a Divorce Petition and original Marriage Certificate must be lodged.  If your Marriage Certificate is not available, it is possible to obtain a certified copy from the Central Registry or the place where you were married.

The Divorce Petition contains general information concerning your marriage, eg details of the date and place of your marriage, the children of your family, if any, any other relevant Court proceedings.

Grounds for Divorce

You can only obtain a divorce on the ground that the marriage has broken down irretrievably and this can only be shown by demonstrating one of the 5 facts:-

1. Your spouse has committed adultery and you find it intolerable to continue living with him/her.
2. Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living with him/her.
3. Your spouse has deserted you for a continuous period of at least two years or more.
4. You have been living apart from your spouse for two years or more and your spouse consents to the divorce being granted.
5. You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.

The proceedings, if undefended, are private and the public are not permitted to see the papers or take part in the proceedings.

As long as the divorce is not defended there will usually be no need for either party to attend Court. 

Children

If children have been born during the marriage or children have lived with you as part of your family during the marriage a form called a Statement of Arrangements for Children is completed and sent to the Court with the Divorce Petition. This form sets out general information concerning the children, for example, their names, ages, residence, day to day care, arrangements for contact with the parent with whom they are no longer living and details of any special health or educational needs which they have.  The Court hopes that both parties to the proceedings will agree the contents and sign this document before it is sent to the court.  If however there is any disagreement regarding the arrangements, the Respondent, i.e. the other party to the Divorce proceedings can give his or her information to the Court separately.

If you would like details of agencies which can help with marriage counselling or can help you to resolve disputes concerning the proposed arrangements for your children, we will be able to provide these for you.

Mediation

In recent years the Government has supported and developed schemes for mediation which offer an alternative way of resolving differences between people involving children matters. If both parties agree to be referred for mediation, then any Court proceedings can be put on hold until the mediation option has been fully considered. Mediation is where a trained mediator uses his/her skills to encourage the parties to reach a settlement between them which reflects both parties needs, interests and responsibilities and of course those of the children. The role of the mediator is to facilitate that agreement reached between the parties rather than to impose an agreement which is what a Court may do.  We can arrange referral to Mediation.

The mediator cannot give legal advice but is independent of both parties and the Court.  Each mediation session normally lasts about 1½ hours and mediation involving finance can take between 3 and 6 sessions before a conclusion is reached.  Children matters normally take between 1 and 4 sessions.  It is essential that both parties give full and frank disclosure of their personal and financial circumstances.  In certain situations where a dispute involves children and the children are old enough the mediator can see the children and feed back to the parties what the children say.

The advantages of mediation are that it can be a cheaper, quicker and more effective method of settlement that Court proceedings. This is because the parties themselves have reached an agreement that they are reasonably happy with and therefore it is one that is likely to be fair and effective.

At any time during the mediation process you would be able to take advice independently from us and then resume the mediation. Mediation may not be appropriate if you consider that you would not be in a fair bargaining position with your spouse or former spouse or that you feel that for whatever reason you would have difficulty discussing matters directly with your spouse or former spouse even through a mediator.

The mediator can give you information about the relevant law.  Solicitors can, if necessary, provide you with legal advice in between mediation sessions, to help you to feel informed and at ease during mediation negotiations.

If financial matters need to be resolved, full financial information has to be provided.  The mediator will give you guidance to help you do this.  You may also wish to involve us at this stage, which mediators encourage.

The discussions that take place in mediation about possible solutions are confidential.  However, any financial information that is produced can be shown to a family court, if necessary and appropriate.

Once a consensus is reached in mediation, we can advise on the appropriate legal formalities that would ensure that your proposals become legally binding.

Mediation can help couples to:

• reduce tension and hostility
• make decisions on an informed basis
• tailor-make solutions to their particular requirements
• communicate and co-operate
• explore and examine options
• appreciate and consider the needs of the children
• express their feelings in a secure environment
• save legal costs because the process can help to resolve many issues.

Mediation may not be appropriate if you consider that you would not be in a fair bargaining position with your spouse or former spouse or that you feel that for whatever reason you would have difficulty discussing matters directly with your spouse or former spouse even through a mediator.

You can consider mediation at any point during the case, not just the outset.

Collaborative Law

Collaborative law is fundamentally changing the way people think about family law.  For separating couples who generally seek a fair solution and want to minimise the pain of a family breakdown it may offer the very best way ahead.

Collaborative lawyers sign an agreement with you which disqualifies them from representing you in Court if the Collaborative process breaks down.  That means they are absolutely committed to helping you find the best solutions by agreement rather than conflict.  The best solutions are often those which are able to work out together in which all of you can share rather than a Judge who doesn't know you imposing a settlement.  The process is carefully prepared but you and your former partner sit down in a room together with your solicitors and discuss the issues face-to-face.

For it to work it needs the right people with the right frame of mind.  They have to have a genuine desire to make it work and a willingness to disclose honestly and fully all information about their circumstances.  It doesn't mean that you already agree on everything otherwise you wouldn't need lawyers.  The Collaborative lawyer's skills are not only the very best experts in family law but also those who have been trained to settle disputes in a collaborative way.  It is often successful because you have the benefit of your own legal advice at the time when you are discussing matters rather than in mediation where the mediator is not able to give advice and there is a significant time delay with you being able to seek advice from us in the mediation process.  There is no threat of Court proceedings hanging over you and the additional pressures and costs that that can bring.

You set the agenda so you talk about the things that matter to you most.  You set the pace because you are not governed by Court dates and appearances.  You maintain a level of contact with your former partner which could form the basis of a long term understanding and accord which is immensely beneficial if there are children involved.

In collaborative law there is full and frank disclosure.  All discussions take place in a four way meeting.  We would be present to help you articulate your views, advise you and secure your interest.  The lawyers and you commit to working in a non-confrontational way with mutual respect and a desire to resolve things sensibly and amicably.  In particular situations it is possible to have matters referred to trained counsellors who can help you emotionally and improve communication with your spouse and partner, financial experts who are able to give information with regard to tax or financial investments.  Experts who are able to deal with any particular problems that the children might have.

It may be worthwhile talking to your spouse or partner about collaborative law and share this information.  Information about collaborative lawyers can be found at http://www.resolution.org.uk/.  The benefits of collaborative law can be both the non-confrontational team based approach which focuses on the matters which are important to you; the process involves you rather than Judges making decisions.

If you would like more information about collaborative law then please let me know.

Parental Responsibility

If you have children from the marriage, you will continue to have shared Parental Responsibility for them after your divorce. This means that although the children will live with one parent, both parents continue to have all the rights and responsibility of a parent and be involved in important decisions, such as regarding education or serious medical treatment.

Also a child cannot be taken out of England and Wales without the consent of the other parent for more than 28 days.

Procedure

A fee of £300 has to be paid to the Court when the Divorce proceedings are issued unless you are receiving advice under the Legal Help Scheme.

The Petitioner's Solicitors sends all the relevant papers to the Court.  Copies of the Divorce Petition and Statements of Arrangements for children, if any, are then sent to the other party, i.e. the Respondent.  The copy documents are accompanied by an Acknowledgement of Service Form which is completed by the Respondent with the assistance of his or her Solicitor.  On this form the Respondent confirms that the papers have been received, states whether or not the Divorce is to be defended and states whether or not any claim for costs or proposals regarding the children are in dispute. 

The Respondent's solicitors send the completed Acknowledgement of Service to the Court and a copy is then sent to the Petitioner's Solicitors.  This is an important part as if the Acknowledgment is delayed or ignored there will be significant delays.

At this stage, provided the divorce is not defended a form known as the Affidavit in Support of Petition is prepared on the Petitioner's behalf.  This document is a straightforward form with a series of questions and answers confirming the information given in the Divorce Petition and giving some additional relevant information.  This document provides the sworn evidence for the court to save the Petitioner and Respondent having to attend Court in person.  There is an affidavit fee of £7 to be paid.

The Petitioner's sworn Affidavit together with a Request for Directions for Trial is sent to the Court but a copy is not sent to the Respondent.  No Affidavit needs to be sworn by the Respondent.

If the District Judge is not satisfied with the arrangements for any of the children, particularly if there is a dispute about contact with the parent with whom they no longer live, an appointment will be fixed for both parties to attend Court.  This is an informal appointment in front of the District Judge and parties are not generally represented at this, although if you wish, we would prepare a letter for you to take to that hearing with you confirming the information which the Court needs.   The Legal Help Scheme does not usually cover representation at the appointment and costs would be increased unnecessarily in private cases.

If the District Judge is satisfied that there are grounds for a Divorce, a date is fixed for the pronouncement of Decree Nisi and there is no need for anyone to attend Court for the pronouncement unless the question of costs is disputed. 

Six weeks after the pronouncement of Decree Nisi the Petitioner can apply for the Decree Absolute, which is done by signing a simple form. There is a fee of £40 payable by you at this stage to the Court unless again you are advised under the Legal Help Scheme.

It may however be wise to delay a Decree Absolute if the finances and pension situation has not been resolved.

Neither party will have to attend Court at all during the course of the divorce proceedings provided the divorce is undefended and the arrangements for the children are satisfactory.

The Court sends copies of the Decree Nisi and Decree Absolute to both parties through their solicitors and both copies should be kept in safe places and in case of future reference.

The Decree Absolute is the final stage in the divorce and you would, for example, be free to re-marry if you wished to do so.  However, you must advise your Solicitor in good time if that is your intention because re-marriage has serious implications for any financial claim you might have against your former Spouse. An Application for Financial Provision cannot be made after re-marriage.

Other Aspects

You may wish to consider making a Will during the course of your divorce proceedings as your spouse will continue to be your next of kin and would generally inherit your estate if you had not made a Will.  Decree Absolute at the end of the divorce has the effect of cancelling any gift you might have made to your Spouse in an earlier Will.  Our Probate Team specialise in this area and would be able to give you expert advice as to what is best for you in your current situation.  We can give you a fixed quote for the cost of your Will at the outset which is a cheap way of ensuring that your wishes are effectively taken care of after your death with the minimum of distress and worry for your family and dependants.

If, after the Decree Absolute is granted, you re-marry then the law prevents you from making or continuing with any financial claim for maintenance, capital or pension against your spouse.  You should, therefore, not re-marry until the financial matters have been resolved.

A decree of divorce invalidates any existing Will you have.  You may wish to consider appointing a Guardian to look after your children in the event of your death.

You should also consider "severing the tenancy" of your home if it is privately owned in the joint names of yourself and your Spouse.  Most married couples own their home as joint tenants which means that their share automatically passes to their Spouse in the event of their death.  You may not wish this to occur and it is possible to sever the tenancy which provides for you each to own one half of the property and that half would pass according to your Will or to your next of kin if you made no Will.  Once your divorce goes through, your children, if any, become your next of kin unless you re-marry.

The average time for a divorce from start to finish is around six months but sometimes the divorce can take longer especially if there are complications, for example, regarding service of the papers on the Respondent.  Also it is sometimes advisable to hold back the Decree Absolute Application until financial matters have been resolved if for example you would lose a potential benefit under a pension scheme by being divorced.

Your Marriage Certificate remains with the Court even after the conclusion of the divorce.  We can provide a photocopy for you but if you ever need a certified copy of your Marriage Certificate you can obtain one from the Central Registry of Marriages.  If ever you mislay your Decree Absolute and need it, for example, in order to re-marry, you can obtain a copy from the Court in which your divorce was granted or from the Principal Registry of the Family Division at First Avenue House, Holborn WC1 but you will need to have the case number.

You may even be eligible for the Legal Help Scheme to cover the cost of your Will, particularly if you wish to appoint a Guardian to look after your children in the event of your death.