|
What information do I need for a divorce?
The Ground for Divorce
The only ground for divorce in England and Wales is the irretrievable
breakdown of the marriage. The marriage has broken down irretrievably
if:
| • |
either party has committed adultery and
their spouse finds it intolerable to live with them (adultery
petition); or |
| • |
either party has behaved in such a way that
their spouse cannot reasonably be expected to live with
them (unreasonable behaviour petition); or |
| • |
either party has deserted the other for
a continuous period of at least two years immediately
preceding the presentation of the petition (desertion
petition); or |
| • |
the parties to the marriage have lived apart
for a continuous period of at least two years immediately
preceding the presentation of the petition and consent
to a decree being granted (two year and consent petition);
or |
| • |
the parties to the marriage have lived apart
for a continuous period of at least five years immediately
preceding the presentation of the petition (five year
petition). |
Either party to the marriage can present a petition for divorce
provided that they have been married for at least a year and
the requirements of domicile or habitual residence in England
and Wales are met.
Most divorces are not defended but one party may try to delay
the decree for some reason or another, usually financial pressure.
There are a number of ways in which the Respondent can seek
to defend the petition.
Procedure for Undefended Divorce
If either you or your spouse decide to go ahead with divorce
proceedings and the other party does not defend the divorce
the procedure is as follows:
The petition and Statement of Arrangements (the Statement)
for the Children (if there are children under 16 or in full-time
education and under 18) are lodged at Court. If yhere are
no children, then only the petition has to be filed. The original
marriage certificate together with a filing fee of £180
must also be lodged.
The solicitor arranges for all the documents to be lodged
at court once the client has agreed the contents and timing.
Once the court file is opened, the Respondent will be served
with a copy of the petition, the Statement and a form called
the Acknowledgement of Service. The third party need not be
named in an adultery petition. If he or she is named, he or
she will also have to be served. The Respondent is meant to
return the Acknowledgement of Service to the court seven days
after service of the petition (or a different time frame if
the Respondent is served abroad). This often does not happen
and usually no point is taken provided the form is returned
reasonably promptly. Occasionally failure to return the Acknowledgement
will require a second petition to be served personally on
the Respondent by an enquiry agent to prove service. The divorce
cannot proceed without proof of service or an order of the
court for deemed service or dispensing with service.
Once the Acknowledgement is lodged, the court will send the
Petitioner a copy. The Petitioner will swear an affidavit
stating that the contents of the petition are true or making
any amendments if necessary. The affidavit will be lodged
at court together with a request that the divorce should be
allowed to proceed. This is known as special procedure. The
court will consider whether the contents of the petition are
proved, and if satisfied will set a date for pronouncement
of decree nisi. From the date the request for trial is lodged,
it usually takes 6-8 weeks at the Principal Registry in London
to obtain a date for pronouncement of decree. It can take
longer. No one needs to attend court when the decree nisi
is pronounced.
The Court can order one party or the other to pay the costs
of the divorce. This is separate from the costs of financial
negotiations or proceedings. Most usually the Respondent is
ordered to pay the costs of an adultery or behaviour petition,
but not always. Quite often the parties will agree between
themselves who will pay. This is particularly true of either
of the separation petitions.
The Petitioner can apply for decree nisi to be made absolute
six weeks and a day from the date upon which decree nisi was
pronounced. The solicitor completes and lodges a form at court
which is usually processed the same day. Upon the decree being
made absolute the parties are then divorced and orders as
to capital payments, transfers of property and pensions schemes
come into effect. The entire procedure for the divorce can
be completed within 3-4 months. Financial matters (called
ancillary relief) are most usually not concluded within four
months. Therefore the decree absolute may be delayed to protect
the rights of the parties under, for example a pension scheme.
If the Petitioner fails to apply for Decree Nisi to be made
absolute, the Respondent may apply to the court to do so three
months after the date on which the Petitioner could have applied,
approximately four and a half months from the date of the
first decree. The Petitioner is given notice of the application
and has a chance to oppose it as there will be a hearing of
the Respondent’s application.
If the divorce is based on two or five years separation,
the Respondent may block the Decree Nisi being made absolute
until such time as the court has considered financial matters
and either a court order made or agreement reached between
the parties.
Ancillary Financial Relief
Ancillary relief is the term used to describe the financial
provision for the spouses following the breakdown of their
marriage.
The law relating to the way in which the court will exercise
its discretion on matters of finance is set out in Section
25 and 25A-D of the Matrimonial Causes Act 1973. The court
must take into account the following factors:
Section 25
(a) 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. The court must
also consider any benefits under a pension scheme which either
party has or is likely to have. In the case of earning capacity
the court will consider whether it would be reasonable to
expect either party to take steps to increase that capacity.
(b) the financial needs, obligations and responsibilities
which each of the parties to the marriage has or is likely
to have in the foreseeable future;
(c) the standard of living enjoyed by the family prior to
the breakdown of the marriage;
(d) the age of each of the parties and length of the marriage;
(e) any physical or mental disabilities;
(f) the contributions which each has made or it likely to
make in the foreseeable future including any contribution
by looking after the home and caring for the family;
(g) the conduct of each of the parties, if that conduct is
such that it would in the opinion of the court be inequitable
to disregard it;
(h) the value to each of the parties to the marriage of any
benefit (e.g. pension) which, by reason of the dissolution
of the marriage, that party will lose the chance of acquiring.
This expressly includes any benefits under a pension scheme.
Section 25A
The Court will consider whether the financial obligation
of one spouse for the other should be terminated as soon as
practicable. The Court must consider the appropriate length
of time before termination and whether the spouse should be
barred from making an application to extend the term.
Section 25B-D
If considered appropriate in the circumstances of the
case, gives the Court certain powers to require the trustees
or managers of the pension scheme in question.
Since the Welfare Reform and Pensions Act 1999 came into
force, the Court can now divide the pension funds between
spouses on divorce. A non contributory spouse can become a
member of the contributing spouse's scheme if the pension
trustees allow it, or transfer the appropriate pecentage of
the pension plan to a different pension scheme.
A pension share can only be acheived by order of the court.
It is not possible to share a pension which is already subject
to an earmarking or attachment order.
The House of Lords decision in the case of White delivered
in October 2000 is probably the most important decision in
ancillary relief work for a number of decades. The Court must
still consider Section 25 factors including as a first consideration
the welfare of the children, but the principle of fairness
of the financial division on Divorce Is important. A check
against equality must be carried out in all cases to ensure
fairness, non-discrimination and good reasons for departing
from equality should be given by the Court. Therefore the
current approach of the Court (where the marriage is a long
one) is that in the bigger money cases where there is a surplus
of assets (over and above needs) the likely division is 50:50.
In the other cases, needs may well mean there is a different
division.
Proportionality
A settlement can be reached at any stage during the proceedings.
The Courts are very keen to emphasise the concept of proportionality
between the amount in dispute and the cost of litigation and
want to ensure the cases are dealt with expeditiously and
fairly.
Procedure
The Ancillary Relief Scheme applies nationwide. One of its
purposes is to impose stricter Court control together with
an attempt to facilitate settlement in order to reduce delay
and limit the legal costs incurred by the parties in resolving
financial claims.
The procedure for financial applications is as follows:
An application for ancillary relief (Form A) is filed with
the Court. The Court then gives a date for a First Appointment
12 to 16 weeks ahead before a District Judge. This is to create
a timeframe within which the case will proceed and which cannot
be altered without permission of the Court. The Court gives
dates when there is to be a simultaneous exchange by both
parties of a sworn statement known as a Form E which contains
a summary of the parties' respective financial resources and
other relevant information. This must be filed with the Court
and exchanged 35 days before the First Appointment.
First Appointment
At least 14 days before the First Appointment both parties
are required to file and serve:
| • |
A concise Statement of Issues |
| • |
A Chronology |
| • |
A Questionnaire setting out by reference
to the concise Statement of Issues any further information
and documents required from the other party |
| • |
Both parties must state whether they will
be in a position at the First Appointment to treat the
First Appointment as a Financial Dispute Resolution (FDR) |
Both the Petitioner and Respondent must attend with their
legal advisers. The District Judge, with the objective of
defining the issues and saving costs, gives Directions. The
Judge will consider the extent to which Questionnaires need
to be answered, documents provided and valuations or other
expert evidence obtained. The District Judge will also direct
that the case be referred to a Financial Dispute Resolution
(FDR) unless exceptionally, it is decided that such referral
is not appropriate.
As can be seen in some cases if both parties have sufficient
financial information the First Appointment can by agreement
be treated as an FDR.
FDR
The FDR is a new type of hearing. It is in effect a without
prejudice Court hearing. Again, both parties attend with their
legal advisers and 7 days before the FDR the Applicant must
file all copies of financial offers to settle the case together
with responses. At the FDR the District Judge listens to solicitors
or barristers for both parties and considers all the papers
including without prejudice offers. The Judge then may try
to persuade the parties to reach a compromise by exploring
common ground and dispelling any unreal expectations which
either or both the parties may hold. The Judge may well indicate
what a Court would consider to be a sensible solution on the
facts based before him.
For the FDR to have any chance of being successful, all parties
have to "put their cards on the table". They must
have provided all the financial information they were ordered
to give at the First Appointment and must have considered
their position and arrived at a sensible view of the possible
outcome.
There is of course no reason why the case cannot be settled
on a voluntary basis while the Court proceedings are continuing.
Any evidence of what may have been said or admission made
in the course of the FDR however, is not admissible in evidence
in Court. This is in order to try and encourage the parties
to reach overall agreement at an early stage in the proceedings.
If no agreement is reached at the FDR then the matter will
be listed for a contested hearing, but before a different
District Judge who will have no previous knowledge of the
case.
If agreement is reached and Decree Nisi has been pronounced
then the Court can make a Consent Order.
Contested Final Hearing
Unless otherwise directed by the Court, not less than 14 days
before the final hearing, the Applicant must file at the Court
and serve on the other party a concise statement setting out
his or her final open position and the nature and amount of
the orders sought from the Court. 7 days after service of
that statement the Respondent in the application files with
the Court and serves on the Applicant a similar statement
in answer.
At the contested hearing both parties will for the first time
have to give evidence about their financial positions and
be cross -examined by the other side's barrister. Both parties
put forward their case and the Judge will make his final decision.
General
The above is a bird's eye view of the scheme which is to encourage
the parties to concentrate on the issues and proceed expeditiously
without incurring excessive costs. At every Court hearing
solicitors representing both parties will have to produce
a written estimate of the costs incurred to date so that the
Court and the parties are aware of the amount of legal fees
spent.
For further details of Charles Russell's other services for
families such as adoption, pre-nuptial arrangements, rights
of co-habitants, please contact David
Davidson or another member of the Family Group.
|
