Divorce petitions: then and now
By:4 commentsAugust 1, 2016
Let’s take a little trip down Memory Lane. I spent a year before university working in Boots to earn some money. Later I took a typing course in order to work at law firms when I was at university, and then I worked for nine months at a legal aid law firm run by my Mum’s brother, Malcolm Sorkin, my late Uncle. His office was located directly opposite the Magistrates and Crown Courts on The Headrow, a main road running down central Leeds, my home city as regular readers of this blog will know. At the time those courts were run from Leeds Town Hall. The County Court, meanwhile, had its home in Albion Place, which was just round the corner from the Danish Kitchen where I used to meet my father for lunch.
It was part of my job as a clerk (for which I was paid a starting salary of £5 per week) to take my Uncle’s various clients to court on ‘Divorce Day’, when the Judges sat to hand down decrees nisi. I used to meet an Indian barrister called Peter Das, a real ‘Prince of the Raj’, always very smartly dressed. He had grey-white hair and clearly ate very well because he was very round – in fact he was as round as he was tall. He was always incredibly kind to me.
At court he would have all his ‘briefs’ – i.e. his papers – all tied with pink string laid out on the courtroom table, and he would call each divorcing client one by one onto the stand to ‘prove’ their case. They stood before a packed courtroom of waiting petitioners as they gave evidence in front of a fully robed and bewigged judge, explaining why they wanted to get divorced. What they had to say in public was often mind boggling. The Judge had to be satisfied there was enough evidence before decree nisi could be granted. The Judges varied. Two were kindly and helpful to each petitioner and their witnesses, but one was gimlet-eyed and a stickler. “That is no reason for a divorce,” he would shout at a poor tearful woman in the witness box – “case dismissed!” And off she would go.
I realised then how difficult and unpleasant it was for some people to express themselves fully in a packed courtroom and lay out the deepest secrets of their marriage in public. At that time it held no attraction for me. I had no intention of being a family lawyer, I did not go on to study family law at university and actually preferred international law. Then off I went to France. But looking back I have a wry smile. Times certainly change, don’t they?
As for my late uncle, only a year later he and his wife tragically lost their lives in the Turkish airlines crash in Paris. His firm, however, proudly survives to this day, although it has since, sadly, changed its name. I noticed recently that they still represent the gypsy communities, who were amongst my uncle’s most loyal clients.
So that was divorce back then. And believe it or not, the same law still applies today- i.e. the Matrimonial Causes Act 1973. You could try reading Section 1 even if you are not a lawyer: it’s very logically drafted and makes for interesting reading.
Nevertheless, current practice and procedure do differ substantially from those days and of course the law is long overdue an overhaul. But for now, if you want an immediate divorce you must still prove fault on the part of your spouse in order to demonstrate that your marriage has irretrievably broken down. This could be due to adultery, as a result of which you find it intolerable to continue living with your spouse. Alternatively, you may announce that your spouse’s behaviour is such you cannot reasonably be expected to continue living with them any longer. Otherwise, I’m afraid, you have to separate and wait two years to get divorced – providing you both consent – or prove you have been deserted for two years and finally, you must wait five years if there is no mutual consent to divorce by separation.
Personally, I think it’s all a bit much. Society has changed, marriage is less popular, more people live together, so in my view it might all be helped if consensual divorce should become more immediately available – just like marriage, on notice, straightforward and without fuss if you want it to be. There is too much emotion, anyhow, at the end of a marriage, without forcing people to rake over the coals instead of trying to be civilised and focus on the future. The relationship has broken down. Two people haven’t made it. It’s time to move on.
But what must happen now, in the second decade of the 21st Century? You may want an immediate divorce, but like it or not you must still attribute fault. A saving grace is that the process is much easier now than it used to be and is largely a form-filling exercise.
You won’t need to go to court if it’s all agreed and you don’t need a witness to complete a form either. It can now all be done online without a lawyer, paying only the astronomical court fee of £550 (unless you qualify for a fee exemption). You can do it yourself or use an online provider if you don’t want to instruct a law firm.
I’d advise you to check whether your online service provider of choice is properly insured and staffed by qualified lawyers. To ensure a fully regulated, fully insured and professional service – in other words, peace of mind – then use a law firm. That way you maximise your chances of it all being done properly – and if for any reason it isn’t, you will have remedies.
Don’t worry if you can’t prove adultery or your spouse won’t admit it. There is no need to name the third party but even so, unreasonable behaviour is a much easier route to go down.
One tip: don’t go to town on the allegations if you’re drafting it yourself. It may be cathartic for you to go on and on and on but it could well elicit an angry response from your spouse and set you up for a full scale row. It could make things worse when it comes to finances and childcare. You could even end up with a spouse determined to contest the divorce – an unnecessary and expensive headache.
It may surprise you to learn that it is possible to draft and agree the particulars with your spouse before the divorce petition is even issued. Keep the details brief and to the point. Typical allegations include lack of affection, care, or understanding; refusal to have sex; arguments, moving out, and your spouse wanting to lead a separate life. Back up your allegations with instances but again, there is no need to go to town with the details. Remember, though, they must be true! Don’t under any circumstances be tempted to invent anything.
If the petition is agreed beforehand, there will then be no unpleasant surprises coming through the post from the court and you will both achieve your aim of a swift, undefended divorce. The divorce process is now dealt with via admin staff in specially designated divorce centres. So keep it straightforward – make sure all the boxes are correctly ticked, the court fee is paid, and an original marriage certificate (not a photocopy) accompanies the divorce petition. Do all that and it’s unlikely to be rejected – although it should be noted that mistakes are sometimes made by court staff.
If you have been unlucky enough to receive a nasty petition I’d advise against doing anything in reply until you’ve calmed down. I’d certainly advise against defending it unless you really are left with no choice, because if it alleges something very serious that you haven’t done, there may be criminal implications and this could have a serious impact on the financial settlement or arrangements regarding any children. In such circumstances you should take immediate legal advice.
In most cases, no matter how unjust the situation may seem, it can be very expensive to defend a divorce. You could end up having to pay your spouse’s legal bills and the chances of success are pretty slim, even if you don’t agree with the allegations made and refuse to believe the marriage has irretrievably broken down. In my entire career, I’ve only ever had one defended case come to court – and my client still got his divorce.
Instead, to keep things on track you can complete the acknowledgement of service form that comes with the petition and state that you aren’t defending but don’t admit any of the allegations. Or you could try and agree an amended set of allegations that you do accept, or you could even issue a ‘cross petition’ and by consent both get divorce decrees against each other if that makes you both feel better. A solicitor should advise on all the various options if it isn’t straightforward.
Do make sure you agree who will pay the costs of the divorce. This is quite important. The court fee, as mentioned above, is a whopping £550. A petition will usually include a claim for costs, and this can be expensive to overlook, especially if it comes from a lawyer because their costs too will be payable on top. So sort this out if you can before the petition is issued or when you receive the petition. Costs collection later can be yet another unwelcome surprise.
You could specify that that the petition go through with no admissions and no order for costs. Or you could agree to pay just half the court fee. You can both agree what you want. But make sure whatever is agreed about costs is set out in writing and sent to the court signed by both of you. The costs claim can be withdrawn from the petition. Your acknowledgement of service form should also set out any agreement on costs.
Finally, and above all, please remember that getting a divorce is just one discrete stage in the process of ending a marriage. There are other areas that might be interdependent and need resolving too, such as finances – what effect will divorce have on your financial claims? Will nasty allegations compromise looking after the children? Do you need a religious divorce? So before you actually do anything, whether you are the petitioner or the respondent on the receiving end, take legal advice. Please remember also that every case is different. The law is complex and interrelated.
At the very least, even if you’re filled with optimism and self-confidence, or just having to plough on yourself out of financial expediency, do go and see a solicitor, at least for some preliminary advice on the implications of your plans before you get underway.
My ebook Divorce and Splitting Up: Advice from a Top Divorce Lawyer may assist you further. It costs just 99p, with all proceeds going to the Children’s Society.
Photo of The Headrow, Leeds, by Andrew Roberts UK via Wikipedia under a Creative Commons licence
August 1, 2016