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Understanding the divorce process

Family & Matrimonial - February 11th, 2021

Despite the fact that almost everyone knows a friend or relative who has gone through a divorce, without direct, personal experience it can be a confusing process.

According to the Office of National Statistics, nearly 108,000 couples chose to divorce in 2019. Each year this is a life event that affects more and more people. Despite the fact that almost everyone knows a friend or relative who has gone through a divorce, without direct, personal experience it can be a confusing process. If your relationship has come to an end and you are considering a divorce, or your partner is beginning divorce proceedings, it is important to understand what you can expect to happen. While this guide is designed to clarify the process, anyone thinking about starting divorce proceedings would be well-advised to seek expert legal advice first.

Grounds for divorce

It may seem a little obvious, but before anyone can start to seriously consider getting divorced there must be proper grounds for it. These are clearly laid out in law and they fall into five distinct categories.

Adultery

If either partner in a marriage commits adultery with another person then this constitutes a reason for divorce. However, there are some requirements for it to qualify. The first is that it must involve your partner’s, not your, actions and a petition for divorce must be filed within six months of discovering that adultery has taken place. It also must be adultery with a person of the opposite sex as the law doesn’t currently recognise that sex takes place between same-sex couples. This also means that this cannot be used as a reason to bring about divorce proceedings in a same-sex marriage.

Desertion

In the eyes of the law, desertion is when one partner leaves the matrimonial home for a period of at least two years without the agreement of the other, without a good reason and with the clear intention to end the relationship. It’s rarely used in divorce cases as there’s a requirement to prove that there’s a mental intent to divorce throughout the two-year period and this is not very easy to do.

Unreasonable behaviour

This is the most commonly cited reason for seeking a divorce with it being used in around 36% of actions brought by men and 51% by women. It refers to any kind of behaviour that the partner seeking the divorce finds intolerable to live with and which has meant that they feel the relationship should come to an end.

It can take many forms from the serious which include violence and abuse to milder forms such as refusing to socialise with friends and family and even preferring to spend time out of the family home. Generally, the court will need to be told about examples of unreasonable behaviour.

Separation of two years with consent

This is often the reason given when both partners agree to the divorce. To qualify, both have to have led separate lives for at least two years before the application is made. It will be necessary to prove that each person has lived as a separate household – but this is still possible if both partners have lived under the same roof as long-separate sleeping and domestic arrangements have been in place.

Five years’ separation

While both partners need to consent to a divorce after two years’ separation, this is not true after five years. In this circumstance, either partner can choose to divorce the other. But, just as with the two years’ separation, the court will need to be convinced that both partners have been apart and lived independent lives for the full five years.

The process of divorce

Once it has been established that there are sufficient grounds for divorce, the procedure can begin. There are a number of variables within this which depend, for example, on whether the partner being divorced contests it or whether it is a straightforward agreement between a couple to separate permanently.

In any divorce proceedings, there are two parties. The person requesting the divorce is known as the petitioner, the one being divorced is the respondent.

The first step is for the petitioner to pay £550 to the court in order to issue the divorce petition using a form called D8. This sets out the basic reasons for seeking the divorce and is sent to the respondent.

If they then respond to this an acknowledgement is sent to the petitioner who can supply a supporting statement and apply to the court for a Decree Nisi. If this is granted, it represents the court stating that it sees no reason why a divorce cannot be granted. Then, after at least six weeks and one day the petitioner can apply for a Decree Absolute to end the marriage.

If the respondent doesn’t acknowledge the petition for divorce, things are rather more complicated as the petitioner has to arrange for the papers to be personally served on them after which they can apply for the Decree Nisi.

In some cases, even after this has been granted the petitioner fails to apply for a Decree Absolute. If they still haven’t done this after 18 weeks from the granting of the Decree Nisi the respondent can choose to pay a fee and apply for it themselves. Once all other matters have been finalised this can then be granted and both parties are free to get on with their new, single lives.

In most cases, the whole process of divorce takes between five and seven months. But in especially complex or contentious cases, it may take up to a whole year.

What happens to the family home after divorce?

A flat or house may be a couple’s biggest single asset, but it’s also where they both live, along with children, pets and sometimes even other generations of the family. So, what happens to the property after divorce is a practical as well as a financial issue.

One might assume that the respondent in a divorce would lose all rights once the Decree Absolute is issued, but this would be very far from the truth. Unless there is a pre-nuptial agreement in place stating otherwise, both parties in a marriage have an equal right to live in the matrimonial home. This is even the case if the house owned outright or mortgaged in the name of just one of the partners. Divorce doesn’t take away this right as the law has been designed to ensure that one or other partner will not be made homeless by the divorce. Equally, it doesn’t mean that either party has a 100% right to continue to live in the house after the divorce.

As with all aspects of a divorce, it is far quicker and simpler if both parties can agree between themselves without going through the courts. If this is the case, there are generally five main options.

  • The property is sold, and any money raised is divided between the two partners.
  • One person stays in the property and buys the other's share.
  • One person stays in the property on the agreement that it will be sold at some time in the future and the money will be divided as agreed.
  • The value of the property is transferred into one person's name, who stays in the property. The other gets to hold on to other assets of a similar value.
  • Part of the value of the property is transferred into one person's name, who continues to live in the property. The other maintains an interest in the property and will receive money when it's eventually sold.

When an agreement is reached, both parties can apply to the court to make it legally binding. Even if it seems to be impossible to agree, it is well worth doing everything feasible to avoid it being a decision made by the court. Therefore, seeking mediation is often a wise course of action.

What happens if a divorcing couple have children?

Divorce can be a particularly difficult experience for couples with children and it is an over-riding principle that it is their interests that always come first.

When a couple end their marriage there is a shared responsibility for the children, as set out in the Children Act 1989 which covers a wide range of duties that parents have.

This includes details like who the children will live with, when the other parent will be able to see them, which school they will attend and even where they will spend their holidays.

Ideally, this can all be agreed but when it can’t there are a number of steps that can the taken before resorting to going to court.

Round Table meetings

Depending on how relations stand between the two partners in a marriage, these can be held in a number of ways. Ideally, both partners and their solicitors get together in one room to try to come to an agreement, often with the solicitors withdrawing to a second room to confer.

Where there is friction and animosity, each partner stays in a separate room with their respective solicitor and the other partner’s representative puts their case for them.

Mediation

This involves working as a couple with a trained and neutral mediator who tries to reach some common ground on which both partners can agree. Once agreement has been reached it can then be handed over to a solicitor to formalise the agreement.

Generally, a court will want to have proof that there has been an attempt to resolve disagreements by either of these methods before it takes the matter into its own hands.

Going to court

If all else fails, then it will be necessary to go to court in order to draw up a Child Arrangement Order. This is a legally-binding document that sets out all of the details of how a child’s welfare will be assured.

Everything begins with a “directions” meeting attended by both parents and presided over by a judge or magistrate. A representative from the Children and Family Court Advisory and Support Service will also be in attendance.

Ideally, arrangements can be made at this meeting. But if they are not possible then a further, more in-depth hearing will be held at which evidence can be presented and witnesses can be called. There may also be a report produced that expresses the wishes of the child, or children.

Using all the evidence and information received, the court will then make a legally-binding Child Arrangement Order.

Other things to consider

While these have been the main things to resolve in a divorce, there are a great many other things to consider. Probably the most important of these is the division of other assets as well as the level of maintenance, if any, that is to be paid.

Once again, the ideal is that both parties will be open and co-operative with each other but often this isn’t the case and thorough investigations have to be carried out to determine the exact value of assets.

There are also things like life-insurance policies and pensions that need to be examined in the light of a couple separating, as well as any arrangements made in either partner’s will.

The latter is particularly relevant as, in law, a divorced partner who is named as a beneficiary in a will is considered to no longer exist. So, if there is still a desire to share any part of an estate with an ex-spouse, a new will would have to be written, or a codicil would need to be added to an existing one.

As you can see, there is a great deal to be considered when it comes to divorce and it is not something to be gone into lightly. It is also vital to ensure that the right legal advice and support is sought at each stage.

At Eatons, we have extensive experience of making divorce as pain-free an experience as possible. So, for any more information, please get in touch.




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