INTRODUCTION TO DIVORCE

So, you want to get divorced? Or, perhaps it is your spouse who wishes to divorce you? Either way, and assuming the marital breakdown is “irretrievable”, the primary questions are:
How does the divorce process work?
What is to be done with the marital home, assets and finances?
What will happen to the children? [for a detailed consider of this topic, see Child Law]

The Divorce Process

If one party to a marriage wishes to obtain a divorce, then there will be a divorce, regardless of whether or not the other party to the marriage agrees or not. That is the reality of divorce litigation. The policy behind this is that the courts do not wish to see partys held in a relationship which they do not choose to be involved in. The courts do not pursue a “fault-based” divorce law when it comes to splitting the matrimonial assets. Therefore, it is generally a relevant that one party, or another, is more “culpable” for the breakdown of the marriage e.g that one spouse has had an affair. Whilst this may seem unfair, it is usually justified on the basis that the divorce process should not encourage recrimination, but should facilitate both parties going their separate ways with a fair resolution to a division of the matrimonial estate, or finances. It is therefore one of the great urban myths regarding divorce that the innocent party will retain all or most of the assets on divorce where the other party has committed adultery or not behaved particularly well. This is simply not correct. Whilst such behaviour may be grounds for divorce, the Court will not take into account such conduct in dividing the assets.

It is for this reason that a “defended” divorce in England and Wales is now almost unheard of.

The Ground(s) for Divorce

“Irretrievable breakdown” if the sole basis for divorce. If a person decides that his or her marriage is at an end, or should be at an end, then a divorce is available by proving one of five facts:

  • that the respondent has committed adultery and the petitioner find it intolerable to live with the respondent;
  • that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  • that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
  • that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the decree being granted;
  • that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Para (b) is the most popular, partly because it involves no interval of time being established, and can be used immediately. It is also popular because all manner of behaviour can be shoehorned the rubic of “unreasonable behaviour”. The classic examples of unreasonable behaviour are one party “belittling the other in front of other people”; “becoming increasingly cold and neglectful”; “unjustifiably critical”; “spending long periods away from the marital home without explaining his/her whereabouts”. These instances would are all commonly found in a divorce petition based on “unreasonable behaviour”.

The adultery ground (a) is also popular, if the facts can be shown, as it is also speedy.

The Procedure for obtaining a divorce: the Petition

In the vast majority of cases, as indicated above, the divorce will be undefended and granted without a hearing. A divorce can be defended on the basis that the facts alleged in the divorce petition are not and do not justify the grant of a decree of divorce. However, to defend a divorce petition is often merely to increase costs and to delay the inevitable.

A divorce must be originated by a divorce petition. Completing the form is relatively straightforward, the only part which requires consideration is to specify the ground of divorce (i.e. which of the 5 grounds above).

Usually filed together with the fourth petition is:

  • a statement of arrangements for children;
  • marriage certificate;
  • a solicitor’s certificate that reconciliation has been attempted.

A petition can be found at http://hmctsformfinder.justice.gov.uk. A specimen divorce petition can be found here.

The divorce itself is a two stage process, firstly consisting of an interim decree (otherwise known as a “decree nisi”); secondly, a “decree absolute”, which is the final order granting the divorce. A petitioner will usually apply for a decree absolute 6 weeks after obtaining the decree nisi. The parties are only free to re-marry upon the grant of a decree absolute. A party re-marrying without obtaining a decree absolute will be guilty of the offence of bigamy.

There can be no final order on division of the matrimonial assets until a decree absolute has been pronounced.
Division of Assets on divorce

The law of dividing assets on divorce is very complex. This is because there are an infinite number of factual financial scenarios circumstantial to a marriage. No two divorces are the same. There is no set formula. Previous cases usually provide no more than useful for general guidance. Most of the cases turn on a detailed factual analysis of the parties’ financies, usually divided into detailed schedules of the parties “capital” i.e. their capital assets including properties, pensions, investments, cars etc, and their “income” i.e. what each party earns from their jobs, or investment income. The court will require the parties to fully disclose all their assets, and income during the financial resolution of the parties’ affairs.

The court therefore has a very wide “discretion” to seek to achieve the right, or fair, result allowing the parties to put the relationship behind them, but at the same time making sure adequate provision is made for the parties themselves, as well as any children. One consequence of this approach is, however, that it is somewhat difficult to lawyers, and their clients, to precisely predict the outcome of the division of assets. Given parties generally self-interest in twisting arguments, facts, and disclosed documents in their own favour under the pressure of a divorce, a criticism of the process is that it often leads to heated, and bitterly acrimonious, hearings at not inconsiderable cost. This has driven the rise of divorce by “mediation” and “conciliation” rather than by adversarial court process.

For a long time, the process of seeking a financial division of assets was called “ancillary relief”, namely that the financial relief is “ancillary” to the main divorce action. The term “ancillary relief” has now been replaced by the term “financial remedies”.

Final Order

Ordinarily, if attempts to settle the splitting of the matrimonial assets fail, a final hearing will be listed. Very often cases will settle in the lead up to the final hearing, or even at the door of the court.

Typical Orders made at final divorce hearings are:

  • Consent order providing for a clean break on a transfer of property order, and ordering child maintenance by consent;
  • Consent order providing for a clean break based on the sale of the matrimonial home, a lump sum payment by instalments, and additional child maintenance to cover school fees;
  • Consent order providing for a continuing financial relationship between the parties, with periodical payments and a settlement of the house [the Petitioner being publicly funded]