1) Who can start divorce proceedings?
In England and Wales anyone that has been married for
more than one year can start divorce
proceedings. From 1 March 2001 they must also satisfy
one of the criteria on jurisdiction that has been standardized
throughout the European Community. This refers to the
parties place of residence and where they are domiciled.
If the criteria is satisfied then in England the English
law will apply on divorce irrespective of where the couple
were married.
2) What are the grounds for divorce?
The grounds for divorce
is that the marriage has irretrievably broken down and
that the petitioner must prove one of five facts as follows:
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That the spouse has committed
adultery and the petitioner cannot be expected to
continue living together; |
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The spouse has exhibited
unreasonable behaviour and the petitioner cannot
be expected to continue living together; |
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The spouse has deserted
the petitioner for a period of 2 years; |
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The petitioner and the
spouse have been living separately for more than
2 years and both parties agree to a divorce; |
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The petitioner and the
spouse have been living separately for more than
5 years whether or not the spouse agrees to a divorce. |
3) How is judicial separation different
from divorce?
In judicial separation the parties will remain married
but will not have to live together. The petitioner will
only have to apply for one decree in judicial
separation whereas with divorce they must apply for
the decree nisi and then a decree absolute.
For judicial separation
there is no need to have been married for 12 months
as with divorce, although as with divorce the petitioner
must still prove one of the five factors. The step-by-step
guide showing the ancillary
relief process to settle the financial matters,
a pension sharing order can be applied in cases of divorce
and nullity of marriage only. This means that for judicial
separation only offsetting
or earmarking
will be available to the parties.
4) What are the grounds for nullity?
If the marriage is not valid the petitioner can have
the marriage
annulled so long as it is within a reasonable time.
There is no requirement to have been married for more
than 12 months to apply for a decree of nullity. The
petitioner could annul the marriage for some of the
following reasons:
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The marriage has not been consummated,
meaning that the parties have not had sex with each
other since being married; |
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At the time of the marriage the petitioner's
partner was married to someone else; |
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One of the parties to the marriage
was under 16 years of age at the time of the marriage; |
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The parties to the marriage are close
relatives; |
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The petitioner's partner was aware
at the time of the marriage they had a venereal
disease but did not inform the petitioner of this
fact; |
At the time of the marriage the petitioner's partner was
aware that they were pregnant with another persons child
but did not inform the petitioner of this fact.
5) What is the next stage for a marriage that has irretrievably
broken down?
The spouse that makes the application for a divorce petition
is known as the petitioner and the other spouse as the
respondent. In the first place it would be an advantage
for the petitioner, this being the wife in 79.0% of cases,
to obtain an agreement for the divorce from the respondent
to reduce conflict during the divorce
and the ancillary relief proceedings.
An agreement would imply an undefended divorce by the
respondent and mean the petitioner can base the divorce
on unreasonable behaviour requiring only a brief outline
of such behaviour, without necessarily prejudicing the
petitioner. Without agreement the petitioner's allegations
could be challenged and although any defence of a divorce
will ultimately fail, a challenge would greatly increase
conflict and animosity during the proceedings.
6) What will happen to the children?
At the time of submission of the petition for divorce,
judicial separation or nullity
of marriage to the court, the petitioner will also have
to include a statement of arrangements form with reference
to any children. The form should be sent to the partner
to be agreed prior to filing with the court.
This form will show whether the parties have made satisfactory
arrangements for the children and if the judge is not
satisfied he can arrange a children's appointment where
the party that cares for the children will have to be
present at court to explain to the judge the arrangements
that have been made for the children.
7) Should an existing will be changed?
An existing will involving both parties should be changed
as a result of divorce proceedings, even before the
court grants the decree
absolute. All existing provisions under trust where
the former spouse is a beneficiary or acting as a trustee
will continue after the divorce and be put into force
in the event of death.
This could have implications for the payment of life
assurance and may not reflect the wishes of the spouse
on death if the will is not changed. It may be necessary
to change the provisions of the will in the short term
before divorce and ancillary
relief proceedings are finalised. A party should
take legal advice when deciding to change their will
during divorce proceedings.
8) When can the parties marry again?
For divorce proceedings there are two decrees and the
first stage is the granting of the decree
nisi. After this the petitioner must wait at least
six weeks and one day before applying for the decree
absolute. When this has been granted the marriage will
come to an end and both parties are free to marry again.
9) Is the law on divorce procedures changing?
The current procedures require the petitioner on divorce
to prove that one fact from five has resulted in the
marriage irretrievably breaking down. The Family
Law Act 1996 (FLA 96) will introduce no fault divorce
so that no grounds will have to be shown as to why the
marriage has irretrievably breaking down. Although some
of the FLA 96 has been implemented, the government announced
in December 2000 that the significant changes this law
would introduce will be delayed for several years.
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