Family Law | How to Divorce
Before going ahead with divorce proceedings or judicial separation proceedings, you should consider whether your relationship is definitely over and to also consider the option of mediation.
What is a Divorce
Unlike a Judicial Separation, once the parties obtain Decree Absolute (the final stage and of which dissolves the marriage), the parties are free to remarry. However, to begin divorce proceedings, the parties must have been married for one year. If the parties have not been married for one year, then they are unable to issue divorce proceedings until the one-year anniversary takes place.
To obtain a divorce, the person seeking the divorce (known as the Petitioner) must satisfy the Court that the marriage has irretrievably broken down (unlike a Judicial Separation where the parties do not need to show this).
To show that the marriage has irretrievably broken down, the Petitioner must show one of the following five facts:
That the other party has committed adultery;
That the behaviour of the other party is unreasonable;
That the other party has deserted the Petitioner for at least 2 years;
That the parties have lived apart for at least 2 years and both parties consent to the proceedings;
That the parties have lived apart for at least 5 years (the other parties consent to the proceedings is not required).
It should be noted, however, that for same-sex couples issuing divorce proceedings, the Petitioner is unable to rely on the fact of adultery as under the Matrimonial Causes Act 1973 says that adultery can only be committed by two people of the opposite sex.
Although sexual contact with a person does not constitute adultery, it may be used as evidence of their unreasonable behaviour.
The Petitioner will need to lodge the following documents at Court:
Divorce Petition (with a statement of the case);
Marriage Certificate (this must be the original); and
Acknowledgement of Service
If the Court is satisfied with the contents of the petition, then the Court will issue the application and provide the Respondent with an Acknowledgement of Service Form.
The Respondent must return the Acknowledgement of Service Form within 7 days.
The Respondent may, in theory:
Return the Acknowledgement of Service Form agreeing to the divorce being non contested;
Return the Acknowledgement of Service Form defending the divorce; and
Fail to return the Acknowledgement of Service Form.
If the Respondent does not return the Acknowledgement of Service Form, the Petitioner is able to show to the Court that the Respondent is aware of the Court proceedings, however, has simply chosen to ignore them. This can be arranged by arranging for personal service of the Court documentation. The Court must be satisfied that the Respondent is aware of the proceedings but simply chooses not to cooperate.
If the Respondent states within the Acknowledgement of Service Form that they intend to defend the proceedings, the Respondent must file a formal Answer within 28 days. The case will then be contested.
If the Respondent does not file a formal answer within 28 days, then the option to defend will expire and the case will proceed as uncontested.
Applying for Decree Nisi
If the Court is satisfied with the Acknowledgement of Service Form, the Petitioner can apply for Decree Nisi. An application for Decree Nisi and a Statement in Support will need to be completed and lodged at Court and this will be placed before the Judge.
The parties will then hopefully receive a document from the Court known as the Certificate of Entitlement which shows that the Court is satisfied that you are entitled to a divorce on the grounds stated.
The Court will then hold a short hearing to pronounce the Decree Nisi. This is a mere formality however a party may wish to attend the hearing to deal with any issues regarding costs.
Applying for Decree Absolute
The Petitioner can then apply for Decree Absolute, dissolving the marriage, six weeks and one day after the date of Decree Nisi. The Respondent can apply for Decree Absolute three months after the date that the Petitioner could have applied.
This procedure is not automatic, and an application is made to the Judge. The Judge has the option to grant or refuse the application.
If granted, the parties are then formally divorced.
A thought post-Decree Absolute
Both parties should be aware that any Will made prior to Decree Absolute will be affected and consideration must be given as to whether another will need to be prepared.
As stated above, either party is able to remarry. However, the parties should be aware that remarriage can affect your right to make certain claims of a financial nature and you should therefore always take legal advice.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
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