PROCEDURE FOR OBTAINING DIVORCE
The timescale for obtaining divorce in England and Wales varies from court to court and from case to case. It depends on the complexity of the case but usually if the case is not complex then it can take four to six months but cases can drag on for considerable lengths of time if it is complicated.
We at Sabeers Stone Greene LLP can provide you with skilled and experienced family law solicitor who can help to reduce this stressful period when disputes about children and finances have to be considered together with the legal process. The financial proceedings are explained in the earlier article.
Simple Divorces are almost a paper process where most of the time nor the husband and neither the wife are required to attend court.
The reason for the breakdown of the marriage hardly ever impacts on how the finances will be divided. The court deals with the financial proceedings separately from the divorce itself.
A person may be entitled to initiate the divorce proceedings in more than one country. Either party to a marriage can apply to the court for a divorce and the spouse who files such an application usually known as divorce petition is called the Petitioner and the other spouse is called the Respondent. The Petitioner has to prove that the marriage has irretrievably broken down by proving one of the following five specific statutory grounds:
- Adultery: the Respondent had sex with someone else of the opposite sex and you the Petitioner can no longer bear to live with them. Please note you cannot use adultery as a ground if the petitioner has lived with the Respondent for 6 months after finding out about it. Or
- The Respondent’s unreasonable behaviour; or
- The Respondent’s desertion for a period of 2 years; or
- The separation of the couple for a period of 2 years or more and both agree to the divorce. Please note that the Respondent must agree in writing. Or
- The separation of the couple for a period of more than 5 years is sufficient to obtain divorce, even if the Respondent disagrees with the divorce.
Usually, in the majority of cases the most common grounds relied upon are adultery and unreasonable behaviour. The unreasonable behaviour is a subjective test so the behaviour relied upon doesn’t have to be extreme. Most of the time the content of the divorce petition is agreed before the petition is sent out to the court to initiate proceedings.
Once the proceedings are commenced, the court sends the Respondent a notice of the proceedings forms, copy of the petition and an acknowledgement of the service form. The Respondent then files the acknowledgement of service form stating whether he or she agrees or disagrees with the divorce.
The Petitioner can apply for decree nisi if the Respondent agrees to the divorce. However, if the Respondent doesn’t agree to the divorce then you can still apply for decree nisi but then a court hearing will be scheduled at court to discuss the case. It will then be up to the judge to decide whether to grant a decree nisi. Decree nisi is a document that states that court sees no reason as to why you cannot divorce.
Once degree nisi is granted, after 6 weeks and one day you can apply for a decree absolute to end the marriage. Decree absolute is the final decree that confirms that the parties named are now legally divorced.
We understand going through divorce is difficult and that is why we at Sabeers Stone Greene LLP are here to help you to obtain your divorce quickly and stress free as much as possible.
Arrangements for your children (previously known as contact and residence order)
Children’s arrangements come in the picture when you divorce or end your civil partnership or separate from your partner. It’s important that you make decisions with your ex-partner or if that is not possible then you can do this with the help of a mediator. If this cannot be agreed then some arrangements can be decided by the courts through a court order. A court order can include the following:
- Where the child will live;
- When they will spend time with each parent; and
- Who will pay child maintenance.
Please note that you must prove you have considered mediation before you go to court. However, this doesn’t apply in some cases such as if there has been domestic violence.
If mediation doesn’t work or the mediator decides mediation is not appropriate then you can go to court. To start the court proceedings you will need to fill in a C100 form to show that you have considered mediation. We at Sabeers Stone Greene LLP can help you with the form and child arrangements proceedings.
A court order can be for one or for number of different things, which you have been unable to agree on with your ex-partner. It’s called the child arrangement order which was previously known as contact order and residence order.
A child arrangements order decides:
- where your child lives;
- when your child spends time with each parent;
- When and what other types of contact (direct or indirect) takes place.
The contact between the parent and the child can be direct or indirect. Direct contact may be communication through letters, emails and telephone calls. This might be ordered if for example a parent lives far or is in prison or to help in re-establishing a relationship. Direct contact on the other hand involves face to face meetings. Sometimes, direct contact is supervised by the Social Services.
The child arrangements order can further include a prohibited steps Order and/or Specific Issue Order.
A prohibited Steps order comes into play when one parent has an objection on something the other parent is doing relating to their child.
A Specific Issue Order is when parents are unable to agree on a specific aspect of their child’s upbringing such as which school the child should attend or if the child should get religious education.
Once you have applied for a court order After you have applied for a court order, the court will arrange a Directions Hearing with both parents. At the hearing there is usually a family court advisor from the Children and Family Court Advisory and Support Service (CafCass). They send you information before the hearing. At the directions hearing the judge or the magistrate will try to figure out what you agree and disagree on and if the child is at risk in any way. The judge will encourage you to reach an agreement if it’s in the child’s best interest. If that is possible then the judge or the magistrate can end the process by making a consent order which will set out what the parties have agreed on.
However, if the parties cannot agree on the first hearing then the judge or magistrate will set a timetable for what will happen next. The parties may be asked to try to reach an agreement by going to a meeting with a mediator. If that doesn’t work then you may be asked to go on a course if the case is related to contact issues. This course is called a Separated Parents Information program. There are usually two meetings and you ex-partner will not be at the same meetings as you. If agreement is reached at any stage then the judge or the magistrate can stop the process. The court can ask Cafcass to provide a report to assist them in deciding what’s best for the child. At that stage the Cafcass officer may ask the child about their feelings. The parties will get a copy of the report as well.
Factors that judges and magistrates consider in making the order
The judges and magistrates always put the welfare of the children first. They consider the following;
- Child’s physical, emotional and educational needs;
- Their wishes and feeling;
- Their age, gender and background;
- Possible risk of harm to the child;
- Ability of parents to meet the child’s needs;
The judge or magistrates will only a make an order if they think it’s in the child’s best interests. We at Sabeers Stone Greene LLP are here to help you through this difficult time from mediation to court proceedings.