GARNER & HANCOCK LLP
DIVORCE
Frequently Asked
Questions on Divorce
Who can start
divorce proceedings?
On what grounds can a divorce
petitioner be started?
What are the grounds of Divorce?
If one of the
five grounds apply, what happens next?
What does the
petition actually look like?
What about the
children?
How much does
the divorce cost?
Why choose
Garner & Hancock to deal with your divorce?
Are financial
issues dealt with before the divorce decree is finalised?
Are the
proceedings public?
Do I have to
attend mediation?
What is the
timetable and procedure for the Divorce?
Introduction to getting a
Divorce
The mechanics of
obtaining a divorce nowadays are usually quite straightforward -
particularly if the couple agree that the marriage is over. The
difficulties tend to lie rather in resolving the related
practical issues stemming from divorce such as how to separate,
where to live, arrangements over the children and any money
matters. Your attention will probably be concentrated on those
related issues and the process of actually getting the decree may
seemed blurred. We will try and outlined a broad framework of the
divorce process, to highlight key points and to set out the sort
of timetable to expect.
Frequently Asked Questions on Divorce
Q. Who can start
divorce proceedings?
A. Anyone who has been married for
over a year provided one or the other of the couple is either
domiciled here or has been resident in England or Wales during
the preceding year. It does not matter where the marriage took
place.
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Q. On what grounds
can a divorce petitioner be started?
A. The only ground for a divorce
is that the marriage has irretrievably broken down, but there is
a complication. A divorce will only be granted if one of five
facts, laid down by law, proving irretrievable breakdown, is
established.
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Q. What are the grounds of Divorce?
(a) Your
spouse has committed adultery and you find it intolerable to
continue living together.
(b) Your
spouse has behaved in such a way that it would be unreasonable to
expect you to continue living together.
(c) Your
spouse has deserted you for a continuous period of two years or
more.
(d) You and
your spouse have been living separately for two years or more and
your spouse agrees to the divorce.
(e) You and
your spouse have been living separately for five years or more,
whether or not your spouse consents to the divorce.
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Q. If the marriage has
"irretrievably broken down" and one of the five grounds
applies, what happens next?
A. This will depend upon your
particular circumstances. It is often sensible to try and obtain
your spouse's consent to the petition and to try and reach
agreement over the contents of the petition. For example, if your
spouse accepts that the petition should be filed based on
unreasonable behaviour, only a brief outline of the particular
behaviour may need be given. Not saying all that might be said
will not generally prejudice you.
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Q. What does the
petition actually look like?
A. Every petition follows the same
form. It contains basic information about names, addresses, ages
of children and a statement that the marriage has irretrievably
broken down. It will also state the "fact" on which it
is intended to rely. The petition will include a section (known
as a "prayer") which will include a request for the
divorce to be granted. It may also include a request for an order
relating to children; a claim regarding costs of the divorce; and
an order for financial provision.
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Q. What about the
children?
A. A form is sent to the Court
with the divorce petition which will outline the arrangements
relating to the children. The law encourages couples to try and
agree those arrangements. The form (known as a Statement of
Arrangements) is usually completed by the person filing the
petition. Preferably it should be sent to the other spouse before
it is filed. If agreement is not reached, this does not prevent
the divorce from proceeding.
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Q. How much does
the divorce cost?
A. This depends on the finances of
each party to the divorce. Those who are unemployed or on a very
low income are likely to be eligible for advice under the Legal
Aid scheme. This means the state will pay the majority, if not
all, of the solicitor's costs (subject to the Statutory Charge if
monies are recovered or preserved). Those who are ineligible for
Legal Aid should ask the Garner & Hancock for an estimate of
the likely costs. Solicitors are obliged to provide an estimate
of their costs at the beginning of the case.
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Q. Why choose Garner
& Hancock to deal with your divorce?
A. Mr Vinay Tanna is a member of the Solicitors
Family Law Association and also a member of the Law Society's Family Law Panel. The firm is
also Franchised by the Legal Services Comission to undertake
Family work.
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Q. Are financial
issues dealt with before the divorce decree is finalised?
A. Very often financial discussion
will not have been completed by the time the decree absolute can
be pronounced. It is not necessary for financial discussions to
be completed by the time the divorce is final. Frequently they
will still be in early stages if finances are complicated. If you
are applying for legal aid in respect of financial negotiations,
your application will take a few weeks to be processed. Your
solicitor cannot take negotiations very far under the "the
green form scheme" now called legal help, but the green form
scheme will enable you to get assistance with the divorce
procedure itself. However, it should be possible to resolve
immediate problems and make temporary maintenance arrangements.
Maintenance for children will, in most cases, be dealt with by
the Child Support Agency. Your Solicitor will explain the
procedure, can assist with your application and, provided
sufficient information is known, can calculate the maintenance
likely to be assessed by the Child Support Agency. Your solicitor
will explain the possible financial effects of the pronouncement
of the decree absolute - for example, with regard to National
Insurance contributions, pension entitlement and protection of
your rights of occupation in the matrimonial home if it is not in
joint names.
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Q. Are the
proceedings public?
A. Court proceedings in family law
are usually private. This means that the public and press are not
allowed access to the Court papers. However, the press are able
to publish the fact the divorce has been pronounced. The
information that they may disclose is very limited. They may
disclose the "facts" of the divorce but they are not
able to publish details of adultery or reasonable behaviour.
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Q. Do I have to
attend mediation?
A . Mediation
A change under Section 29 of the Family Law Act makes it mandatory for
those clients who are proposing to make an application for Legal Aid to
be referred to mediation before Legal Aid is applied for. A declaration
by a mediator is required in a formal notice that the parties have
sought mediation and mediation has not been successful for any number
of reasons. Without such a declaration from a recognised mediator Legal
Aid cannot be granted for any matrimonial proceedings including
ancillary and childrens matters. It is therefore vital that mediation
be sought at an earlier stage. The following mediators are recommended
although this is not an exhaustive list of the mediators which offer
services of this type:-
Mediation in Divorce
(MID) 13 Rosslyn Road East Twickenham TW1 2AR Telephone No: 0208
891 6860
The National Family
Mediation Service which can help you locate local mediators 9
Tavistock Place London WC1H 9SN Telephone No: 0171 383 5993
The Central Middlesex
Family Mediation Civic Centre Complex Station Road Harrow
Middlesex HA1 2HX Telephone No: 0208 427 2076
The Divorce Mediation and Counselling Service 33 Ebury Street London SW1W OLU Telephone No: 0207 730 2422.
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T he
timetable and procedure for the Divorce
After one
year of marriage either spouse may start the divorce. He or she
is referred to as the "petitioner".
The
petition and statement of arrangements about the children are completed
and then sent to the Court together with the marriage certificate. A
fee, currently £300 is payable.
b) The Acknowledgment ~ Within
29 days of receipt (longer if the documents have been sent abroad)
Whether or not an acknowledgment has been filed, the Respondent must,
if he or she intends to defend the petition, file a defence (called an
"Answer"). The petition then becomes "defended" and the procedure
outlined below does not apply. Defended divorce proceedings resulting
in a fully contested hearing are very rare. However, a delay in
finalising the divorce is inevitable. Note: If the Respondent does not
agree with the Statement of Arrangements for Children, he or she may
file a statement setting out his or her arrangements.
c) Within a
few days of receiving the acknowledgment of service from the
Respondent ( and Co-Respondent). The court sends to the
Petitioner's solicitor a copy of the forms of acknowledgment of
service.
d) The Decree Nisi ~ If
the Respondent is not defending the petition, the Petitioner can apply
for the Decree Nisi to be pronounced. The Petitioner's solicitor
prepares an Affidavit exhibiting the Petition and the arrangements for
children if applicable. The Affidavit is sworn before a solicitor or an
officer of the Court as to the truth of what has been said in Petition
and Statement of Arrangement for children.
e) The
sworn Affidavit is then filed with the court together with an
application for the matter to be placed on special procedure,
which is the procedure when both parties consent to the divorce
and the grounds of the divorce are satisfied.
f) If the
acknowledgements of service are not returned to the Court. Proof
that the Respondent and any named Co-Respondent have received the
petition will have to be obtained before the Petitioner can take
the next step. This may involve arranging for someone to deliver
the petition to the Respondent and any named Co-Respondent
personally or, exceptionally, obtaining a Court order that proof
does not need to be given that the Respondent and Co-Respondent
have received the Petition. This is called "dispensing
service".
g) On
receipt by the Court of the application for a date for
pronouncement of the Decree Nisi and Affidavit The District Judge
looks through the papers and, if they seem in order, gives a
certificate for the Decree Nisi to be pronounced. Both the
Petitioner and the Respondent (through their solicitors) are then
advised of the date fixed for Decree Nisi. Depending on the
Court's diary the date is likely to be a few weeks after the
application is lodged. The parties do not have to attend Court.
h) If
agreement has not been reached as regard the children of the
marriage, the District Judge may ask the Petitioner and the
Respondent (accompanied by their solicitors) to attend an
informal appointment to explore a solution to the difficulties.
The District Judge may also ask for a Court Welfare Officer to
become involved. If a solution can not be reached, this will
delay the application for the final decree of divorce.
i) The Decree Absolute ~ If
arrangements in relation to the children are settled between their
parents. Six weeks and one day after the date of the Decree Nisi The
Petitioner may apply for the final decree ("Decree Absolute") by
sending the appropriate form to the Court together with the fee of £40.
This step is not automatic. This Decree will be processed and may be
available as quickly as the same day.
J) Three
months after the Petitioner could first have applied for Decree
Absolute. The Respondent may apply for the Decree Absolute if the
Petitioner has not already done so.
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Compiled by Vinay Tanna - January 2010
