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15 February 2012

Divorce: the basic information I tell my clients

Mahie Abey
When my clients ask me about divorce at my initial meeting with them, I first talk about the options available to them, usually describing three:

Do nothing: when people separate they do not have to do anything formal to end the marriage. As an example I mention my own parents, who separated in 1975, are financially independent, have new partners but are still married to each other. This is not an option that is to be recommended as there is no certainty, either financial or emotional.

Have a separation agreement: people who do not want to get divorced can enter into a separation agreement. This is a contract between the two of them which, as long as it is entered into with the benefit of legal advice, full disclosure and at arm’s length, can generally form the basis of how the money will be divided. However I also have to point out that such an agreement can be overruled by the Court if the judge thinks something in it is unfair.

Divorce: if, and only if, the client is sure their marriage is at an end I tell them that, in my view, divorce is the best option. Divorce provides emotional and financial certainty and closure, both of which are very important to people who are separating.

I also point out that the divorce is an administrative process that runs alongside the steps leading to a settlement on money and children. I then take my client through the rules on divorce which, in my view and those of many other family lawyers, are outdated and somewhat ridiculous. 

The rules on divorce

The only legal reason for divorce is the irretrievable breakdown of a parties’ marriage. That breakdown must be demonstrated in the divorce petition (the form which initiates the divorce process) in one of five different ways.

One of these is desertion but that is so rarely used that I ask clients to ignore it.

The other four can be divided into “no fault” and “fault” grounds.

 “No fault” divorce means just that: no-one is blamed for the divorce. The “no fault” grounds are: 
  • 2 years separation with consent
  • 5 years separation, irrespective of consent
Both these grounds mean you have to wait a period of time before the divorce petition can be presented.  

The “fault” grounds are:
  • adultery
  • unreasonable behaviour
At this point I explain that unreasonable behaviour is used as the catch all ground of divorce - any marriage, however happy, has enough to justify an unreasonable behaviour application. There is an unwritten rule in English divorce proceedings where judges set a relatively low bar as to what qualifies as such behaviour, to allow people to get divorced without waiting 2 years, even if in reality no-one is at fault.

Co-operating on the divorce itself

An important part of my role at this stage is to explain that as a member of Resolution I am committed to helping the client end their marriage with as little acrimony as possible. Most family lawyers belong to Resolution, although not all practice what the Resolution code of practice suggests.

I urge my clients to put the divorce into a box in their head. A divorce should be just the administrative process of bringing their marriage to an end (although that process is unnecessarily complicated). The emotional upheaval has taken place before the decision to divorce is made. After that point, every effort should be taken to keep emotion out of the divorce process. The chief aim is to have an undefended divorce, one in which neither party disputes the reasons for the divorce. This is achieved by the parties compromising on the contents of the relevant documents.

If there is to be a divorce based on unreasonable behaviour, I will explain that the other party can respond by accepting that the marriage has irretrievably broken down but that they do not accept the facts (or “particulars) of the behaviour, reserving the right to challenge them at a later date if required. This useful device allows unreasonable behaviour petitions to go through without either party needing to admit responsibility. Hopefully this reduces the potential for conflict on what can be very emotive issues If an adultery petition is contemplated, I stress that the person with whom the adultery has been committed (the “co-respondent”) should not be mentioned in the divorce documents. This is unnecessary and increases the complexity and the cost, as all the forms have to be sent to them too for their comments.

I also stress that an adultery petition should only go ahead if the other party accepts that adultery has taken place. If not, then adultery is next to impossible to prove and should be avoided as a basis for a divorce.

If the basis for divorce is two years separation with consent I explain that separation, in its legal context, means that you can live in the same house but in different households where there is little or no sharing of lives. This will be enough to establish separation as long as there is an intention to separate.

The key is to reach agreement on how the divorce will proceed and to do everything possible to avoid arguing about the terms.

The divorce process itself

I then set out the details of the divorce process. I explain that the person starting a divorce is known as the Petitioner and the person receiving the divorce petition is known as the Respondent. Once the divorce petition and (if relevant) a form setting out what will happen to the children in the household (the “Statement of arrangements”) are agreed, the Petitioner will send the two forms to the Court with a cheque for the Court fee of £340. The Court will require the original of the marriage certificate which will not be returned. The Court will then issue the divorce petition and deliver it (“serve”) to the other party. He or she completes and returns an acknowledgement of service form indicating that they do not intend to defend the divorce and are content for it to proceed.

The Petitioner can then apply for Decree Nisi, which is the first of the two Decrees necessary to bring a marriage to an end. Six weeks and 1 day from the grant of Decree Nisi the petitioner can apply for Decree Absolute which, once granted, formally brings the marriage to an end. The whole process usually takes between four to six months.    

Where pensions are involved, it is usual to delay the Decree Absolute as, by formally ending the marriage, it will mean that the parties cannot benefit from widows or widower’s entitlement to pension funds if the pension holder dies before the finances are resolved. Therefore it is usually the case that finances are resolved before making an application for the Decree Absolute.

This has been taken from The Divorce Process & Meeting a solicitor section of our guide Divorce, Courts & Costs (& How We Can Help). Read the full version here.