The mechanics of obtaining a divorce nowadays are usually quite straight forward – particularly if the couple agree that the marriage is over. The difficulties tend to lie rather in resolving the related practical issues stemming from divorce such as how to separate, where to live, arrangements for the children, and any money matters.

Your attention will probably be concentrated on those related issues and the process of actually obtaining the divorce may seem blurred. There follows an outline and a broad framework of the divorce process, to highlight key points and to set out the sort of timetable to expect.

1. Who can start divorce proceedings? Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. It does not matter where the couple married.
2. On what grounds can a divorce petition be started? The only ground for divorce is that the marriage has irretrievably broken down, but there is a complication. A divorce will only be granted if one of the five facts laid down by law, proving irretrievable breakdown is established.
3. What are the “facts”?
   1. Your spouse has committed adultery and you find it intolerable to continue living together.
   2. Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living
      together.
   3. Your spouse has deserted you for a continuous period of 2 years or more.
   4. You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
   5. You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.
4. If the marriage has “Irretrievably broken down” and one of the 5 facts applies, what happens next? This will depend upon your practical circumstances. It is often sensible to try to obtain your spouse’s consent to the petition and to try to reach agreement over the contents of the petition. For example, if your spouse accepts that the petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour may need to be given. Not saying all that might be said will not generally prejudice you.
5. What does the petition look like? Every petition follows the same form. It contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down. It will also state the “fact” on which it is intended to reply.
6. What about the children? A form is sent to the Court with the divorce petition which will outline the arrangements relating to the children. The law encourages couples to try and agree those arrangements. The form (known as a “Statements of Arrangements”) is usually completed by the person filing the petition. Preferably it should be sent to the other spouse before it is filed. If agreement is not reached, this does not prevent the divorce from proceeding.
7. How much does the divorce cost? This depends on the finances of each party to the divorce. Those who are unemployed or on a low income are likely to be eligible for advice under the legal aid scheme. This means the state will pay the majority, if not all, of the solicitor’s costs. Those who are ineligible for legal aid should ask his/her own solicitor for an estimate of the likely costs. Solicitors are obliged to provide an estimate of their costs at the beginning of the case.
8. Are financial issues dealt with before the divorce is finalised? It is not necessary for financial discussions to be completed by the time the divorce is final. Frequently they will still be in the early stages if finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements.
9. Are the proceedings public? Court proceedings in family law are usually private. This means that the public and press are not allowed access to the Court papers. However, the press are able to publish the fact that a divorce has been pronounced. The information that they may disclose is very limited. They may disclose the “facts” of the divorce but they are not able to publish details of the adultery or unreasonable behaviour.

Timetable

1. After one year of marriage, either spouse may start the divorce. He or she is referred to as the “Petitioner”. The petition and statement of arrangements about the children are completed and then sent to the Court together with the marriage certificate. A fee, currently £410.00 is payable unless the Petitioner is being advised under the legal aid scheme.
2. Within a few days of sending the petition to the Court, the Court sends a copy of the petition and statement of arrangements to the other spouse referred to as the “Respondent”. A copy of the petition is also sent to anyone named in the adultery petition. That person may be referred to as a “Co-Respondent”. If the Respondent (or Co-Respondent) has instructed solicitors, the petition may be sent to them.
3. From the date the documents are received the Respondent has strict time limits to observe.
   1. Within 8 days he or she should send to the Court a form called an “Acknowledgement of Service” which accompanied the petition. The form asks the Respondent whether it is intended to defend the petition, whether any claim for costs is disputed and whether orders affecting the children are sought.
   2. Within 29 days of receipt (longer if the documents have to be sent to an address abroad) Whether or not the Acknowledgement has been filed, the Respondent must, if he or she intends to defend the petition, file a Defence (called an “Answer”). The petition then becomes defended and the procedure outlined below does not apply. Defended divorce proceedings resulting in a fully contested hearing are very rare. However, a delay in finalising the divorce is inevitable.
4. Within a few days of receiving the Acknowledgement of Service form the Respondent (and Co-Respondent). The Court sends to the Petitioner’s solicitors a copy of the form(s) of acknowledgement of service.
5. If the Respondent is not defending the petition, the Petitioner can apply for the Decree Nisi to be pronounced. The Petitioner’s solicitor prepares an Affidavit for the Petitioner to swear confirming that the contents of the petition are true. It will also state whether any circumstances (including those relating to the children) have changed since the filing of the petition. The Petitioner will swear the Affidavit before a solicitor or Court Official and it will then be sent to the Court with the request for a date for the first decree of divorce (“Decree Nisi”) to be pronounced.
6. If Acknowledgement of Service is not returned to the Court, proof that the Respondent, and any named Co-Respondent, have received the petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for someone to deliver the petition to the Respondent and any named Co-Respondent personally, or exceptionally, obtaining a Court Order that proof does not need to be given that the Respondent and Co-Respondent have received the petition. This is called “dispensing with service”.
7. On receipt by the Court of the application for a date for pronouncement of the Decree Nisi and Affidavit the District Judge looks through the papers, and if they are in order, gives a certificate for the Decree Nisi to be pronounced. Both the Petitioner and the Respondent (through their solicitors) are then advised of the date fixed for the Decree Nisi. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. The couple do not have to attend Court.
8. What normally happens with regard to the children? If agreement has been reached, the District Judge is unlikely to interfere. If agreement has not been reached, the District Judge may ask the Petitioner and the Respondent (accompanied by their solicitors) to attend an informal appointment to explore a solution to the difficulties. The District Judge may also ask for a Court Welfare Officer to become involved. If a solution cannot be reached, this will delay the application for the final Decree of divorce.
9. If the arrangements in relation to the children are settled between their parents.
   1. 6 weeks and 1 day after the date of Decree Nisi. The Petitioner may apply for the final decree (“Decree Absolute”) by sending the appropriate form to the Court. This step is not automatic. This Decree will be processed and may be available as quickly as the same day. A fee of £45.00 is payable unless the Petitioner is legally aided or on income support.
   2. 3 months after the Petitioner could first have applied for Decree Absolute the Respondent may apply for the
      Decree Absolute if the Petitioner has not already done so.

ANCILLARY RELIEF PROCEDURE

Once proceedings for ancillary relief (an application for a financial order) have been filed, the case must follow a strict time table laid down by the court.

Both the Applicant and the Respondent must personally attend each hearing unless the court otherwise directs.

An up to date costs schedule has to be produced to the court and shown to you and the other side’s legal advisors at every hearing.

It is important you are aware that the court’s over-riding objective in dealing with ancillary relief cases is to deal with cases justly.

This means that the court will approach the case as follows:-

a. In ensuring that the parties are on an equal footing.
b. Saving expense
c. Dealing with the cases in a way which are proportionate:-

1. to the amount of money involved;
2. to the importance of the case;
3. to the complexity of the issues;
4. to the financial position of the parties;

d. Ensuring that the case is dealt with expeditiously and fairly.

The Time Table

1. A notice of intention to proceed with an application for ancillary relief is made in Form A.
2. The notice of application is then sent to the court. The court issues the application and sends each party Form C setting out the time table for the case up to the First Appointment.
   1. In Form C the court will direct that each party must attend a First Appointment 12-16 weeks ahead.
   2. Each party must exchange a statement of information about their financial circumstances known as Form E no later than 35 days before the First Appointment.
   3. The court will also direct that each party’s legal representative file a questionnaire, statement of issues, chronology and schedule of costs (in Form H).
   4. Each party must also file notice in Form G stating whether we will be in a position at the First Appointment to treat the First Appointment as a Financial Dispute Resolution hearing (FDR).

If these directions are not complied with the court can impose cost penalties.

The First Appointment

1. The First Appointment is a directions hearing which has to be attended personally by both parties unless the court orders otherwise.
2. The object of the First Appointment is to define issues in dispute and save costs.
3. The District Judge must determine:-
   1. the extent to which any questionnaires seeking further information must be answered; and
   2. what documents must be produced and give directions for the production of such further documents as are necessary.
4. The District Judge must give directions about:-
   1. the valuation of assets (including where appropriate joint instruction of joint experts);
   2. obtaining and exchanging expert’s evidence if required;
   3. the evidence to be produced by each party; and
   4. further chronologies or schedules (where appropriate).
5. The District Judge must, unless he decides that a referral is not appropriate, direct that the case be referred to an FDR.
6. If a District Judge decides an FDR is not appropriate he must:-
   1. fix a further appointment for directions; or
   2. fix a case for final hearing; or
   3. adjourn the case for out of court mediation or private negotiation; or (in exceptional circumstances)
   4. adjourn the case generally; or
   5. fix an appointment for the making of an interim order.
7. The District Judge must consider whether, having regard to all the circumstances, (including the extent to which each party has complied with the rules up to this point and particularly the requirement to send documents with Form E) he should make an order about the costs of the hearing.
8. Please note, after the First Appointment a party is not entitled to the production of any further documents except in accordance with the directions given at the First Appointment, or with the permission of the court.