Divorce

A Petition for divorce can be issued one year after the marriage took place.

There is one ground for a divorce, namely the irretrievable breakdown of a marriage.

There are five facts, of which one is to be relied upon the Petition:-

1. Adultery;
2. Unreasonable Behaviour;
3. Two years’ separation by consent;
4. Five years’ separation;
5. Desertion.

Void and Voidable Marriages

It is possible to obtain a ‘decree of nullity’ at any time from the date of the marriage. A marriage may be annulled if it can be proven that it is void or voidable.

A void marriage is one which in effect is void at the time of the marriage and it is treated as if it never took place.

A voidable marriage is a valid marriage treated to have taken place but for reasons it is annulled by a decree e.g. lack of consent, non consummation, incapacity.

Divorce Procedure – if the Petition is undefended

A brief outline to divorce procedure:-

1. The Petitioner issues a Petition at the local County Court, with Certified copy marriage certificate, Statement of Arrangement as to Children, Notice of reconciliation, fee of £300 or an application for fee exemption;
2. A form entitled, ‘Acknowledgement of Service Form ‘ will be sent to the other party (known as the Respondent);
3. The Respondent has within seven days to return the form to the Court;
4. If the Petition is undefended, the Petitioner applies for Directions for Trial in the Special Procedure List. The application consists of an Affidavit (sworn statement) and Exhibit, attaching a copy of the Acknowledgement of Service form.
5. If the District Judge is satisfied that the Petitioner has proved the contents of the Petition and is entitled to a divorce, a Certificate of Entitlement to a divorce will be granted. The Court will fix a date and time for the pronouncement of a decree nisi;
6. The Petitioner may apply for a Decree Absolute six weeks and one day after the grant of a decree nisi; The Respondent may apply for the decree absolute three months and six weeks after the grant of a decree nisi. There are reasons for delaying an application for a decree absolute, including matters relating to children and finances.
7. The grant of a decree absolute dissolves the marriage.

Judicial Separation

The grant of a decree of judicial separation results in a formal separation. The parties remained married. A decree releases both parties to the marriage from the duty to cohabit. There is only one decree to be granted.

A Petition for Judicial Separation can be issued at any time after the marriage has taken place. One must rely on the five facts referred to in the section on Divorce.

Judicial Separation does not affect a Will and provided your spouse is still beneficiary to that Will, he will benefit from any property left to them in that Will.

Financial Settlement in Divorce Proceedings

Ancillary relief is financial settlement relating to proceedings in respect of separation or divorce.

There is in existence a Pre Action Protocol, which attempts to obtain an agreement without recourse to the Courts. The Protocol builds on and increases the benefits of early but well informed settlement which genuinely satisfies both parties to the dispute. The aim is to facilitate settlement, minimise costs and reduce delay.

In all proposals for financial settlement, one is required to assess the following:-

The first consideration to be given is to the welfare of any children under the age of 18 and then to consider:-

1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity and increase in that capacity which it would be in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. the standard of living enjoyed by the family before the breakdown of the marriage;
4. the age of each party to the marriage and the duration of the marriage;
5. any physical or mental disability of either of the parties to the marriage;
6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. the conduct of each of the parties, if that conduct is such that it would be in opinion of the Court be inequitable to disregard it;
8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage or any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Both parties to a separation or divorce are expected to be encouraged to co-operate with each other and to identify the issues;

If matters proceed to Court, the Court may order any one or more of the following:-

1. periodical payments – e.g. maintenance;
2. secured periodical payments;
3. maintenance pending suit;
4. lump sum;
5. transfer of property;
6. order for sale;
7. settlement of

An alternative to petitioning for a divorce of judicial separation is to obtain a Separation Agreement.