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Preconditions for a divorce being granted by a court in England and Wales

At the time of petition:

  • The marriage must be legally recognised in England and Wales
  • The marriage must have had a duration of at least one year
  • Barring exceptional circumstances that grant what is known as residual jurisdiction[1], at least one of the following must apply:
    • The respondent is habitually resident in England and Wales
    • The petitioner is habitually resident in England and Wales, and has resided there continuously since at least a year ago
    • The petitioner is domiciled in England and Wales, and has resided there continuously since at least six months ago
    • The petitioner and respondent were last both habitually resident in England and Wales, and one of them still resides there
    • The petitioner and respondent are both domiciled in England and Wales, irrespective of habitual residence[2]

Procedures for obtaining a divorce in England and Wales

  • Complete form D8[3], ‘Divorce / dissolution / (judicial) separation petition’. This may legitimately be done by the petitioner acting alone, or through representation by a solicitor. In view of the typical complexity of divorce cases in which there is any disagreement between the parties, representation by a firm of expert solicitors specialising in divorce law, such as Battrick Clark of Whiteladies Road, Bristol, is highly advisable.
  • An optional step recommended where there is a chance of negotiating a divorce on agreed terms is then to send a draft of the petition to the other party for review and revision. If undertaking this step, proceed to the next only when a final draft has been agreed by both parties. Experienced solicitors may be valuable as negotiators of the terms of this draft.
  • Submit the completed form together with two copies to an appropriate court, together with the court fee (£550 in September 2016) and a certified certificate of marriage or civil partnership (as applicable).

Grounds for divorce in England and Wales

At the time of petition, at least one of the following conditions or sets of co-occurring conditions must apply as grounds for divorce.

  • The respondent has committed adultery and the petitioner considers continued living with the respondent to be intolerable[4]
  • The respondent has otherwise behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent[5]
  • The respondent has deserted the petitioner continuously for at least two of the last 2½ years
  • For any reason, the parties have lived apart for at least the last two years, and the respondent consents to the granting of a divorce
  • For any reason, the parties have lived apart for at least the last five years (no consent required)

The applicable condition or conditions must be specified in Part 5, ‘The fact(s)’, on form D8, with the support of a brief written statement in Part 6, ‘Statement of case’.

Prayer

Part 10 of form D8, headed ‘Prayer’, serves three distinct important purposes.

  • Formalises the central request for divorce, judicial separation, or dissolution.[6]
  • Asks the petitioner whether or not he / she wishes the court to apportion the costs associated with the petition to the respondent.[7]
  • Allows the petitioner to give the court notice of his / her intention to initiate separate proceedings for financial resolution including:
    • The granting of financial provisions to the petitioner;
    • The granting of financial provisions to the children.

Procedure for responding to a divorce petition filed with a court in England and Wales

Once the Respondent receives the petition from the court, he/she must return the acknowledgement of service form (form D10) that accompanied the petition to the court within 7 days.

  • The Acknowledgement of Service typically includes a statement of whether or not the respondent agrees to pay the petitioner’s costs.
  • If the respondent wishes on the record to deny the allegations set out in the petitioner’s  statement of case, but without filing a costly formal challenge to the petition, he / she has the option of including on the Acknowledgement of Service form a simple statement of non-acceptance of allegations made by in the petition. This form of informal written objection will be no impediment to the divorce proceeding.

An optional stage, if disagreeing with the terms of the petition but not the fact of divorce, is for the respondent then to contact the petitioner, either directly or through a solicitor, requesting amendments to the petition. However, the court will charge a flat fee (currently £95 in September 2016) for any changes made, and the petitioner may also have to pay additional solicitors’ costs incurred in arranging this.

The respondent has up to 28 days from the time of receiving the petition to file in the court a formal challenge to it. This may take one of two forms depending on the objectives of the challenge:

  • If the respondent wishes to continue the marriage, he / she may defend against the divorce petition by filing with the court a document called an Answer.
    • The court fee in England and Wales for filing an Answer was £245 in September 2016.
    • Answers aimed at denying the fact of divorce in itself have a poor success record, with judges typically taking the view that if one partner believes that a marriage has broken down, it has done.
    • If the court rules that an Answer was unmerited, it may additionally award costs against the respondent.
  • If the respondent wishes to proceed with divorce but disagrees with the petitioner’s grounds and statement of case, he / she may decide to issue an Answer together with an additional document called a Cross-Petition.
    • The Cross-Petition is a competing petition for divorce, on the terms preferred by the recipient of the original one.
    • Where a Cross-Petition has been filed, the court must consider both petitions, and costs will be considerably higher for both parties.

Procedure for Financial Settlements

The financial resolution of divorce is formally handled separately from the divorce itself.

  • Attempt to negotiate an agreed financial settlement with the other party before starting divorce proceedings. This is not legally necessary but is best practice for keeping costs manageable and resolutions mutually acceptable, where it can be achieved. Experienced divorce lawyers can be helpful in the negotiation process. Mediation is also recommended by solicitors to try and resolve financial issues
  • In negotiated settlements, a lump sum may be offered in lieu of ongoing maintenance payments to the other spouse, but not in lieu of child maintenance payments.
  • If you are the petitioner, make sure you have opened the way to applying for financial resolution through a court order by filling in the relevant requests for financial provision in the Prayer section of the petition.
  • If a voluntary settlement cannot be agreed or is not being adhered to by the other partner, then once the petition is in process, fill in and submit to the court the government-issued Form A, Notice of [intention to proceed with] an application for a financial order[8], to initiate formal judicial financial resolution proceedings. This can even be done any time after divorce is complete but before the party applying for the order remarries (if applicable).
    • Form A is quite a complex form, and hiring the services of a competent, reputable solicitor may again be helpful here.
    • You will also need to attend a mediation information and assessment meeting before you send your application to the court as the mediator is required to sign the form, save in certain circumstances
    • The cost of filing Form A was £255 in September 2016.

Judicial Guidelines for Financial Settlements

  • The economic needs of children are considered separately and prioritised.
  • Child maintenance payments are required for all children aged up to and including 16, but also extend to those aged 17-20 who have remained in full-time education or whose resident parent is in receipt of child benefit.
  • The amount of child maintenance due is expected to be decided by voluntary agreement between the parents by default, but in the absence of such agreement, the Child Maintenance Service exists to calculate and enforce payments.
  • Step-parents who divorce natural parents may be required to pay child maintenance.
  • Provisions for maintenance payments to the other partner are not compulsory if both partners have agreed to opt out of them. Where they are applied for, they take into consideration factors including:
    • The assets and earning capability of each partner
    • Special financial needs such as those arising from disabilities
    • The accustomed economic living standard prior to the divorce
    • The duration of the marriage and age of the partners
  • In the event of the recipient of maintenance remarrying, the existing maintenance order from which he / she has benefitted will be automatically discharged..
  • In the event of either the economic circumstances of the recipient of maintenance substantially improving, or those of the payer substantially deteriorating, the payer of maintenance may apply for a reduction or cessation in payments.
  • In the calculation of financial assets at the time of divorce, trust funds are counted, and all overseas savings and assets must be fully disclosed; but expected future inheritances are not considered.
  • The financial resolution of divorce is not usually impacted by alleged misconduct by the respondent (e.g. adultery, unreasonable behaviour).
  • However, extreme behaviour that has caused severe and lasting harm, such as disabling physical violence against the other partner, or the reckless destruction of financial or property assets, may be taken into consideration.
  • Courts may also occasionally punish dishonest and obstructive behaviour in the process of litigation by making costs orders against the relevant individual.

Terms and definitions:

  • England and Wales – For purposes of jurisdiction, England and Wales are treated together as a single entity. Scotland has its own separate laws.
  • Domicile – the country considered by someone to be his / her permanent home
  • Habitual residence – the country where someone voluntarily lives for settled purposes (temporary and occasionally absences do not count against this)
  • Petitioner – the party who launches the petition for divorce
  • Respondent – the other party in the marriage
  • Prayer – the petitioner’s set of requests to the court
  • Adultery – sexual intercourse between a married person and a person of the opposite sex other than his / her spouse[9]
  • Desertion – the departure of one marital partner to live apart from the other, without the agreement of the other, and without good reason, or with the intention of ending the relationship, irrespective of whether or not adultery has been committed by the departing partner.

 

[1] For a full list of these, see page 4 of the supporting document ‘D8 Notes’ at http://formfinder.hmctsformfinder.justice.gov.uk/d008-notes-eng.pdf

 

[2] This condition is only applicable in the cases of marriages, and not to those affecting civil partnerships

 

[3] https://www.justice.gov.uk/downloads/forms/fjr/d8_web_0414_2.pdf

 

[4] If the parties continued to live together for at least six months after the disclosure to the petitioner of the last identifiable instance of adultery committed by her / his partner, then adultery cannot be claimed as grounds for divorce by the petitioner

 

[5] Unreasonable behaviour may be constituted by a wide range of occurrences, but among the most common are physical violence, threats, verbal abuse, alcohol or substance abuse, and refusal to financially contribute to the common costs of living. If the parties continued to live together for at least six months after the last identifiable instance of unreasonable behavior, then that incident of behavior will be disregarded by the court for determination of whether the Petitioner cannot reasonably be expected to live with the Respondent.

 

[6] Dissolution applies to civil partnerships only

 

[7] Requests of this nature are standard practice where a petition is made with claims of fault on the part of the respondent

 

[8] https://www.justice.gov.uk/downloads/forms/fjr/Form_A_web_0414_3.pdf

 

[9] Adultery cannot legally be claimed in cases of same-sex marriages under the present law of England and Wales

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