It is perhaps not surprising that the largest number of petitions for divorce are presented to the courts in the months of January and February, and then September. For many couples the strain of close contact for an extended period over Christmas or a family holiday is the final straw when a relationship is already in crisis. For others they have wanted to see Christmas through or have a final family holiday for the sake of the children.
Whatever the time of year reaching the decision that your marriage has broken down is not an easy one. Divorce is readily recognised as one of the most stressful experiences in life and getting the process right can affect the rest of your life and that of your children.
There is only one ground for a Divorce namely that the marriage has irretrievably broken down but this is proved by proving one of five facts namely:-
- That your husband/wife has behaved in such a way it is unreasonable to expect you to live with them; or
- That your husband/wife has committed adultery as a result of which you find it intolerable to live with them; or
- That your husband/wife has deserted you for a continuous period of at least 2 years; or
- That you and your husband/wife have lived separate and apart for at least 2 years and they consent to there being a divorce; or
- That you and your husband/wife have lived separate and apart for at least 5 years.
It is perhaps not surprising that 75% of all divorces proceed on the basis of behaviour. Most couples cannot wait for an extended period of separation to occur before finalising divorce and financial issues. Whilst there is a "no fault" divorce system on the statute books this is now unlikely to ever be implemented and therefore for the time being one party will generally have to blame the other for the breakdown of the marriage.
Whilst this may be the case the process of ending your marriage does not have to be an adversarial process. The family law protocol recommends that before any divorce petition is issued the parties via their solicitors attempt to agree the facts set out in the divorce petition. This will not be appropriate in all cases but can help take the heat out of the situation in others.
If you have children then as well as the divorce petition itself your solicitor will also need to complete a form known as "Statement of Arrangements for Children". In this form you provide details of all children both of the marriage or who have been treated as children of the family who are under 18 years and in full time education or training. The document sets out where the children live now, how they are being educated and supported and what the plans are for the future. This is an early opportunity to think about what the arrangements will be for the children following separation. Again, if possible, the statement should be agreed with your spouse but if not then ultimately there will be applications before the court to resolve the living arrangements and visiting arrangements for the children.
Once you have approved both the petition and Statement of Arrangements the documents will be sent to your local County Court. There they will be sealed and copies posted to your spouse. They then have to complete an Acknowledgement form to confirm that they have received the divorce petition, to indicate whether they intend to oppose the divorce and whether they agree with the proposals for the children. Perhaps surprisingly 99% of divorces are not opposed. This is because you can allow the divorce to proceed without making any admissions and when the court comes to resolving the financial arrangements of the parties it does not take in to consideration whose "fault" it is that the marriage has broken down other than in very extreme and exceptional circumstances.
Once the Acknowledgement has been returned you complete a sworn statement to confirm that the contents of your petition are true. The effect is much like giving evidence in the terms of your petition but without the need to attend court. This is forwarded to the court. All of the papers are referred to a District Judge. He will check that your Petition is technically correct and that you have made out the grounds for your divorce. If he is satisfied he will certify that you are entitled to a decree of divorce and a date will be set for the Decree Nisi.
In addition the arrangements for the children will be considered. The judge will usually certify that the arrangements for the children are satisfactory or the best that they can be in the circumstances. However, if there is a dispute as to the arrangements the judge can list the matter for a short hearing to see if issues can be resolved with the intervention of the court. Whilst the judge can list such a hearing of his own initiative in practice it is usually left to one of the parties to make a formal application to the court if there is a major disagreement regarding the children.
The Decree Nisi, in a somewhat antiquated way, is still read out in court but there is in fact no need to attend. The person starting the divorce then has to wait 6 weeks after the date of the Decree Nisi before applying to finalise the divorce in the form of the Decree Absolute. Again this application is simply made through the post. The court staff will check that the 6 week period has elapsed and that no objections have been made to the divorce being finalised. Provided everything is in order the Decree Absolute will be sent out in the post and the divorce will be complete.
Whilst this appears a relatively straightforward process there can be pitfalls along the way and it will usually take at least 6 months to complete. There is no such thing as a "quickie" divorce. Indeed in many cases the divorce will take much longer to finalise as it is common not to apply for the Decree Absolute until financial issues have been resolved. Such issues are far more complex than the divorce itself and can take much longer to resolve.
Whatever the reason for your separation there will be a multitude of issues to consider; divorce, children, finances including housing needs, income and pension provision. It is important to instruct specialist solicitors who have the legal skill and knowledge to advise you properly and expertly but who will also deal with you sympathetically and supportively at this most stressful of times. This is the service that the family department at Sydney Mitchell LLP can offer. With a team of 7 specialist lawyers based at our 3 offices at Sheldon (near Birmingham airport), Shirley and Birmingham City centre.
For further information on divorce or any other family related issues, please contact Karen Moores on 0808 1391036, email k.moores@sydneymitchell.co.uk or fill in our online enquiry form.
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