Family Law

According to Azhar Hussain, solicitor-Advocate and head of family at Optimal Solicitors, the decision to marry or enter into a civil partnership is often well considered with many aiming for this to be a lifelong commitment.

Consequently, people do not plan for the breakdown of such relationships and are not prepared to handle the difficulties posed by legal processes involved in resolving the issues. Unfortunately, the breakdown of relationships can be irretrievable and such matters are often described as one of the most difficult times individuals can face in their lifetime.

This view is understandable, as not only are you facing the prospect of a complete breakdown in your relationship, but you are also having to face the linked and imperative issues, such as child arrangement or financial matters.

I am acutely aware and champion the drive to simplify legal processes in order to allow individuals to deal with the issues without being bogged down in sheer confusion which can lead to unnecessary costs, proceedings and disputes arising. The on-going progress in making the legal system more accessible is cheered on and a legal system that is coherent, transparent and progressive cannot be considered as anything other than brilliant.

Considering Divorce Proceedings or Alternatives to Divorce

The prospect of divorce, dissolution or judicial separation are normally considered when you are deciding how to deal with the breakdown of your relationship. It has long been considered imperative for individuals considering divorce to appreciate the alternatives mentioned above as such action, once completed, terminates the marriage. This is drastic action and you should fully appreciate and understand the implications of such action.

Often, clients become upset at the mention of reconciliation when they attend to discuss termination of their relationship. However, there is a duty to provide the best possible service to clients and this includes ensuring that you understand there are alternatives available.

Alternatives to Divorce

Reconciliation: It is always advisable to consider attending some form of reconciliation counselling before you embark on formal separation or divorce proceedings. It may be the case that you work through your difficulties and reconcile. This is not outside the realm of possibilities. There are numerous organisations who can assist, such as Relate who provide relationship support and can be contacted on 0300 100 1234 or www.relate.org.uk/about-us.

Separation: Formal or informal separations can also be considered, dependent on your circumstances. The parties could agree a period of separation to gather their thoughts and rebuild the relationship. The arrangements during this period of separation can be agreed by both parties but if you want to formally agree financial matters, you should consider a formal separation agreement. This will not have the same effect as financial orders made on divorce as the other party can make consequent applications to court. If such an agreement is entered properly the Court will consider it as one of the factors when deciding the matters.

Judicial Separation: This is normally used where you do not want to formally terminate the marriage. It is often used by individuals who do not want to divorce for religious reasons. This would mean that you would remain married but would have a judicial separation and can then also deal with the financial aspects of your case.

Divorce – Initial Considerations

The following keywords should be initially understood. The Petition refers to the application.  The Petitioner is the party commencing the divorce proceedings and the Respondent is the party replying. Unfortunately, even if both parties are agreeing to the Divorce, the law still requires one spouse to petition against the other.  The current system is fault based and is currently being reformed, however such changes will take some time to implement.

The parties must be married for at least one year before they can apply for a divorce. This is known as the ‘one-year bar’ and is confirmed by section 1 of the Matrimonial and Family Proceedings Act 1984. However, this does not prohibit individuals from petitioning on the basis of issues which occurred before the expiration of the first year.

There is one ground for divorce, despite common misconceptions. Section 1(1) of the Matrimonial Causes Act 1973 states the ground to be an irretrievable breakdown of the marriage.

This is proven by one of five facts which are explained in section 1(2) Matrimonial Causes Act 1973:

ADULTERY – The Respondent has committed Adultery and the Petitioner finds it intolerable to live with the Respondent;

UNREASONABLE BEHAVIOUR – The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;

DESERTION – The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition;

TWO YEARS SEPARATION (WITH CONSENT) – 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;

FIVE YEARS SEPARATION (NO CONSENT) – The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.

It is imperative for one of the five facts to be established in order for the marriage to be considered to have broken down irretrievably.  The facts evidence the breakdown of the marriage (Buffery v Buffery [1988]).

The location of where you were married does not necessarily matter and you can apply for a divorce in England & Wales if you are domiciled here or satisfy residence conditions. Please contact us to discuss your options in this regard and we shall endeavour to assist you.

Divorce the Process

Step One: Instructions are taken and the petition bundle is drafted. When this is approved and finalised, the documentation is lodged with the Court. The documentation is issued and a case number is assigned.

Step Two: The Court will then serve the documentation on the Respondent. The Respondent will then need to complete a document named the Acknowledgment of Service. This is a two-page document and must be completed by the Respondent. If the Respondent decided to defend the proceedings the matters do become more complex. If the Respondent does not defend the proceedings, their involvement is usually finished at this stage and the divorce will normally progress.

Step Three: This is known as the Decree Nisi stage. This is sometimes mistakenly believed to be the divorce. This is not correct, and that step is the Decree Absolute. There is a further application and a statement in support to be drafted. The Judge will then consider the file and consider if the legal requirements have been fulfilled. If they do not agree, they may raise further queries. If the Judge does agree, they will issue a certificate stating when the Decree Nisi shall be pronounced. This would be in a formal hearing, but the parties are not required to attend. In this hearing, the Judge will read out a list of names of all individuals who have reached Decree Nisi.

The Court can consider financial matters and make an order at this stage regarding your financial matters. This will require separate proceedings but can be done by way of consent or through formal court proceedings.

Step Four: Upon the Decree Nisi being pronounced and granted, an application for Decree Absolute can be made. The law requires you to await a period of 6 weeks and 1 day thereafter. This will allow for any change of mind at this stage and before the marriage is dissolved. If the Decree Absolute is applied for and proceeds, this would dissolve and conclude the marriage. The parties should ensure financial matters are considered and resolved before proceeding with this course of action.

How Long Will This Process Take?

The duration of divorce proceedings, for a straightforward matter, can be anywhere between 3-6 months.  This is not a guaranteed timeline and relies heavily the responses from the Respondent and the Court workload/delays.