DIVORCE PROCEDURE

Discussion in 'Finance, Property, Law' started by JudgeDredd, Nov 14, 2008.

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  1. Divorce Procedure Information

    THE LAW

    To obtain a divorce the person asking for the divorce (known as the Petitioner) must satisfy the Court that the marriage has irretrievably broken down.

    The other party to the divorce is known as the Respondent.

    To show the marriage has broken down the Petitioner must establish one of the following facts:-

    1) That the Respondent has committed adultery.
    2) That the Respondent has behaved unreasonably.
    3) That the Respondent has deserted the Petitioner for at least two years prior to presenting the petition to Court.
    4) That the Petitioner and the Respondent have lived apart for at least 2 years and that the Respondent agrees to the divorce.
    5) That the Petitioner and the Respondent have lived apart for a continuous period of at least 5 years.

    The proceedings may be issued in any County Court, although normally they will be issued in the nearest County Court.

    PROCEDURE

    ISSUING THE APPLICATION (PETITION)

    The procedure for an undefended divorce is as follows:-

    1) The Divorce Petition together with a statement setting out the arrangements for any relevant children are prepared and lodged with the County Court. Unless the Petitioner is receiving a low income there is a fee payable to the Court (presently £300).

    2) After the papers have been issued by the Court they must then be served upon the Respondent; this can be done either by the Court (1st class post) or, in difficult cases, by a private bailiff.

    3) The Respondent will receive a copy of the Divorce Petition, a copy of the Statement of Arrangements for Children (if there are children involved – even if they are not your own biological children) and a form called an Acknowledgement of Service. Within 7 days of receiving the papers the Respondent must return the Acknowledgement of Service to the Court.

    RETURNING THE ACKNOWLEGEMENT OF SERVICE FORM

    In practice, the Respondent may do a number of things:-
    a) The Respondent may return the Acknowledgement of Service agreeing to the divorce being uncontested.

    b) The Respondent may fail to return the Acknowledgement of Service at all.

    c) The Respondent may return the Acknowledgement of Service indicating an intention to defend the divorce.

    If the Respondent fails to return the Acknowledgement of Service the Petitioner must satisfy the Court that the Respondent knows about the proceedings but has chosen to ignore them. This can usually be done by simply arranging for bailiff service of the papers.

    If the Respondent indicates an intention to defend, the Respondent must then within 28 days file a formal Answer and the case will become contested. If, however, the Respondent does not go on to file the Answer, once the 28 day period has expired the divorce can proceed uncontested. VERY FEW divorces proceed this way because of the huge costs involved. I would not be surprised if this contested procedure cost around £5-10,000 for each party!

    More often than not, after a bit of aggro, the Respondent usually eventually files the Acknowledgement of Service Form or a bailiff has served that document personally on the Respondent and the Court has been satisfied that the Respondent knows about the proceedings but simply chooses not to co-operate we can move on to the next stage.

    “SPECIAL PROCEDURE”

    At the next stage the Petitioner must satisfy the Court that the contents of the Divorce Petition (and Statement of Arrangements for Children if appropriate) are true. This is done by completing a form called a 'Special Procedure Affidavit'. This document is completed by the Petitioner's Solicitor and approved by the Petitioner.

    The Affidavit is then sworn by the Petitioner, either before another Solicitor or before an Officer of the Court.

    The Petitioner also signs a second document which effectively requests the Judge to look at the papers and confirm whether grounds for divorce have been proven WITHOUT ANYONE TURNING UP TO COURT

    These two documents are then sent to the County Court and the matter is placed before the Judge who hopefully certifies that grounds for divorce have indeed been shown.



    DECREE NISI

    Both the Petitioner and the Respondent (through Solicitors if instructed) are then notified that the Judge is satisfied that grounds for divorce have been proven and are given the date for the pronouncement of Decree Nisi (i.e. the first stage in the divorce).

    Generally, there is no need for either party to attend Court for the Decree Nisi. In practice what usually happens is that before the business of the Court starts the Clerk announces that Decree Nisi is pronounced on the list posted outside the Court. The list identifies the name of the parties only.
    The Decree Nisi is then sent to both the Respondent and the Petitioner, although the Court can sometimes take some time to process the paperwork.

    APPLYING FOR DECREE ABSOLUTE

    Six weeks and one day after Decree Nisi the Petitioner may apply for the Decree Absolute. This involves filling in a simple form and either taking it or posting it to the Court and includes a fee ( at present this is £40). The parties are not actually divorced until the Decree Absolute is received and again the Court may take a short while to deal with the paperwork.

    If the Petitioner fails to apply for Decree Absolute the Respondent may apply any time after three months from the date when the petitioner could first have applied (e.g. the Petitioner could have applied for Decree Absolute on the 2nd August 2001, the Respondent could make the application any time after 2nd November 2001).

    The procedure is not automatic; the application is made to the Judge and the Petitioner must be given notice of the application and hence the opportunity to object. The Judge may grant or refuse the application.

    Finally there are two points to bear in mind once you have your Decree Absolute:-

    1. Any Will made prior to Decree Absolute may well be affected and consideration must be given to whether making a new Will is appropriate;

    2. Once you are divorced you are also of course free to remarry; remarriage can affect your right to make certain claims of a financial nature. Always speak with your Solicitor before remarrying if the financial side of your Separation/Divorce has yet to be finalised.

    The most common mistake people make when they get divorced is to presume that their assets now belong to them. WRONG!

    The assets remain joint matrimonial assets effectively forever until the financial aspects of your divorce are dealt with in an ancillary relief application – which is something entirely separate. I will be doing a post on that in the weeks to come

    I hope you find that helpful.
     
  2. In examples 1 and 2 (adultary and unreasonableness) there is, clearly, an element of blame. Does the "wronged" party get a more favourable settlement than they otherwise would have got if it was a mutual separation?
     
  3. (PS. I'm not looking for a divorce....I'm just interested!)
     
  4. For a friend ?
     
  5. My own personal procedure was
    1. Commit adultery
    2. Get caught
    3. Petitioned for Divorce
    4. Pay £100k
    5. Get married again
     
  6. Questions:

    I am divorced, as part of the divorce amongst other things, she claimed 25% of my pension, which she got. Now I assume that portion of the pension is her financial asset full stop?

    Question 1: If she dies (no I am not planning on bumping her off) I assume her pension asset would go to her children?

    Question 2: If she remarries, she retains the pension asset - it would not come back to me?

    Question 3: She knowingly recieved and spent a payment from the Army meant for me of £1200, could I claim that back from her from her pension?
     
  7. in reality the answer as unfair as it seems, is no.

    for the "injured" party to get an enhanced settlement for only unreasonable behaviour, is for the behaviour to be very very bad.

    the well known case on this was a female nurse who was slashed across the face by a husband. i have dealt with cases where one party has tried to and got close to running the other person over and a stabbing.
     
  8. you could have:

    1 commit adultery
    2 DONT GET CAUGHT
    3 petition for divorce amicably
    4 pay 70K
    5 get married again
     
  9.  
  10. BiscuitsAB

    BiscuitsAB LE Moderator


    Mine went like this :)

    1. Leave wife
    2. Get Petitioned for unreasonable behaviour (Well thought me leaving was
    very unreasonable)
    4. Give up everything I had except for £10 in a cash ISA and all the debt.
    5. Not get married again.
     
  11. Many thanks for the answers.

    With regards to question 3, unfortunately I will have to seek it through small claims, the army paid it incorrectly to her account, which I assumed was closed under JPA. I was waiting for the payment for some time before I discovered that they had given it to her.

    They now tell me its nothing to do with them, I should seek to reclaim it myself. I have contacted my solicitor who is looking into it, my worry is that I go through small claims court and they agree to give it back, but she can only pay £5 a month as she is on incapacity benefit and has no income. The only asset she has in the 25% of my pension that she has.

    Even when she is order to pay I expect she will be late, claim she cannot pay etc etc drawing it out until I cannot be bother to chase it any longer.

    I suppose I have basically lost £1200 due to JPA (in a nutshell) By the way I am out now.

    Cheers again.
     
  12. The police would not be in the slightest bit interested. Don't bother.

    Issuing civil proceedings will cost you more in money, time and hassle than you'd be likely to recover. Don't bother.

    You won't "get it back from her pension" in a million years. "highly unlikely" is what solicitors say when its fcuking impossible.

    Sorry, mate, you've lost it. Move on.
     
  13. i agree completely !!
     

  14. Judge, this is really helpful, thank you.

    One question though. When petitioning for a divorce can you only use one ground? Say for instance you have a number of grounds for the divorce, can you cite all of them?
     
  15. There would be no advantage to doing that. The court does not care why the marriage has broken down. It is only concerned to establish that it has broken down, and that the breakdown is attributable to one of the reasons allowed for by law. If it is then the court has the jurisdiction to grant a decree of divorce.

    When it comes to divvying up the property and assets, the court will not "punish" one party for their adultery/unreasonable behaviour except in exceptional circumstances (and I mean exceptional) where the conduct of one party has been of a very serious nature and has had a financial effect on the other party. But these situations are very rare nowadays.