Getting divorced: a user’s guide
By:1 commentNovember 4, 2014
So you’re getting divorced. Quite how you feel about that prospect will, of course, depend on the circumstances. Are you divorcing your spouse or being divorced by them? No one likes to feel like a victim of circumstances we cannot control – that is one of the worst sources of stress that life can throw at us. But relationships are a delicate balance. If your partner decides it’s all over, there is in reality very little you can do. You might – might – be able to persuade them to give it another go, but the cat is out of the bag and the genie is out of the bottle. That delicate balance has taken quite a knock. You cannot unsay the word ‘divorce’.
Even if you have made the proactive decision to divorce, it can still be a daunting prospect. You may have heard dire tales of traumatic splits that dragged on for many months or even years. You may be worried about money, about seeing the kids, about where you’re going to live….the list goes on.
So my first piece of advice to getting divorced would be: sit down, take a deep breath, and try to think through your situation as clearly and calmly as you can. In divorce, as in any family matter, acknowledge and accept the emotions that are bound to flow – grief, anger, sadness – but do not allow your heart to overrule your head. Whether you opt for mediation, arbitration, negotiation or the courtroom, stay calm, stay clear-headed, and focus on your own best interests and those of your children.
In my years of experience, I have found that most divorce falls into two broad categories: those that are trundle through the system smoothly and relatively quickly; and those that are messy and fraught with unexpected complications. I have had clients who found out that they were not legally married after all, clients whose spouses died unexpectedly before proceedings were completed and clients who discovered that were entitled to far more than they had thought. None of us can know what lies around the corner, just out of sight.
So, when it comes to divorce, with all its human complexities, it is only really possible to offer a pencil sketch in an article such as this. The colour, paint and texture will be provided by your own unique circumstances.
In England and Wales, divorce is currently granted on the basis of a single ground: the irretrievable breakdown of marriage. One of five “facts” can be used to prove that “irretrievable breakdown” has taken place. They are:
- Unreasonable behaviour.
- Desertion for a period of two years or more.
- Two years’ separation with consent.
- Five years’ separation without consent.
Numbers one and two in the list – adultery or unreasonable behaviour – are the most commonly cited grounds for divorce. They offer a relatively speedy route to divorce. When a marriage breaks down it is not too difficult to alight upon instances of unreasonable behaviour.
It is important to understand right from the outset that the reason given for divorce usually has no impact upon financial settlements, questions of residence or contact with any children of the marriage. The respective needs of both parties and any children of the family remain the paramount legal consideration and long gone are the days where adultery meant that a financial settlement would be affected or a mother ruled unfit to look after her children.
As of now, divorce remains a six-step and entirely legal process. However, for most couples it will also be non-contested and therefore proceed without the need for a court hearing.
There are discussions under way regarding whether or not to make non-contested divorce an entirely administrative process, but given that fraud may be involved for some divorcing couples whose marriage was a sham, that discussion is likely to rumble on for some time yet. We lawyers are aware, however, that the number of divorce petitions being issued is now being carefully controlled, from fewer specific courts around the country, and this should make fraud easier to spot.
The first step is to lodge the divorce petition with the court. The court will then send a copy of the petition to the other partner. The partner who lodges the petition is the petitioner; the other partner is the respondent. If the reason for the divorce is adultery and a third person is named in the petition, he or she is called the co-respondent. You cannot lodge a divorce petition until you have been married for at least a year.
A note on co-respondents: even if you have the opportunity to name a co-respondent on your divorce petition, I do not recommend that you do so. Such naming is rarely necessary and; a decision to “name and shame” may therefore come across as embittered and vengeful. It is unlikely to impress a judge because it adds to the costs and causes unnecessary conflict. My advice is to save your powder for dealing with the children and finances.
The respondent must complete an Acknowledgement of Service document and indicate any intention to defend the divorce. The majority of divorces in this country are undefended. If you defend the divorce, you may end up having to pay the costs of a prolonged and bitter battle. In more than thirty years, I have only had to deal with one defended divorce. In that case the other party, who opposed our client’s petition, ended up paying the costs.
The respondent has seven days to reply and should consult a solicitor at this stage.
The Acknowledgement of Service is then returned to the court, and they will in turn send a copy to the petitioner or their lawyer. The petitioner’s next step is to file an statement, confirming that the details of the divorce petition are correct. Once the statement is sworn it is returned to the court.
The statement is placed before a district judge. If the judge decides that the documentation is in order, a certificate is granted and sent to the petitioner, giving a date when the decree nisi will be pronounced in court.
It is not necessary for either party to be in court for the latter stage.
It is important to recognise that the decree nisi does not end the marriage. Partners cannot remarry until the decree absolute has been obtained. However, the court has does have power to make a final order regarding finances at this point.
Six weeks after the decree nisi is issued, the petitioner can apply for that decree absolute. A sealed copy of this is sent to both parties and this should be produced as evidence of divorce on remarriage. If the petitioner delays applying for the decree absolute, a respondent may apply three months after the earliest date that the petitioner could have applied for it.
This procedure may sound complex but it should take no more than 12 to 16 weeks from start to finish. In theory are the words that I’d like to emphasise here. The decree absolute is, unexpectedly perhaps, one of the thorniest stages in the process. I have had hundreds of queries on this blog from people who don’t know whether or not to apply for the decree absolute, because they know it will end their marriage and they are not sure if it will affect their financial position.
In most cases the decree absolute will make no difference, but in a few cases, there can be good reasons to delay applying for it – for example, to protect your rights and benefits in the event of death before a final financial order is made. There may be are substantial pension benefits that would automatically be lost in the event of a death before a financial order is made. Alternatively, there may be a religious divorce taking place at the same time and the parties may wish to ensure that they are divorced in both religious and civil law together, something which is often particularly important for Jewish or Muslim couples. Similarly, for wealthier couples who do not yet have a financial settlement in place, it may make sense to wait because benefits received through a trust or company could be lost if the spouse is divorced.
It is important that you and your lawyer, if you instruct one, discuss the best time for this crucial final stage in the divorce process. Remember that once divorced you cannot become a widow or widower. Therefore, in the unlikely but still possible event of a spouse’s death before the decree absolute, you would not be entitled to any widow’s or widower’s automatic entitlements on death.
So there you have it. I would certainly recommend that anyone facing a divorce seek the best legal advice they can afford. Decisions made and settlements can – and often do –affect the rest of your life.
Photo by Thomas Guignard via Flickr
November 4, 2014