Family Law

For those adjusting to life after separation, thoughts might now be turning to the technical aspects of the divorce itself, and they may find themselves bewildered by the challenges this process presents.

Last week, as I was explaining the divorce procedure to a client, it struck me again (as it does every time I go through the process with a new client) how archaic and bound up in legal jargon it is. Notwithstanding the recent and sudden increase in the court fee for issuing divorce proceedings (the fee went up to £550 on 21 March 2016, with only 2 days' notice to family law professionals), divorce should be universally accessible to everyone who needs it. Fundamentally, the divorce process is primarily one of form-filling. However, these forms are being completed by vulnerable people at one of the most difficult times in their lives, and should therefore be as straightforward and comprehensible as possible. The system should be such that it alleviates difficulties, rather than increasing rancour between separated couples.

There are two fundamental problems with the divorce process. The first is that, as the law currently stands, unless a divorcing couple have been separated for 2 years and they both agree, the procedure requires one of them to point the finger at the other and attribute blame for the breakdown of the marriage. Resolution, the nationwide association of family law professionals, is campaigning for the introduction of 'divorce without blame'. However, the House of Commons' second reading of the 'No Fault Divorce' is now likely to take place in the next Parliamentary session, despite having been scheduled to take place on a number of occasions in recent months and being nominated for 22nd April 2016.  Unfortunately, it does not look likely that we will see change any time soon.

The second problem is the terminology involved. The 2010 Family Procedure Rules were intended to simplify and replace some of the language used in the family courts, which in turn would increase accessibility. However, the Rules were not able to modernise any terminology that was already included in statute, so, for example, the use of a 'petition' to initiate divorce proceedings remains.

With all this in mind, here is my guide to some of the most common, and bewildering, terminology used within divorce proceedings:

'Petition' – this is simply the application to the court for a divorce. The party starting the process completes the appropriate form, setting out their own details and that of their spouse, and explains why they feel that the marriage has irretrievably broken down. They are referred to as the 'petitioner' and their spouse, who will receive the Petition, the 'respondent'. To establish that the breakdown of the marriage is irretrievable they must rely on one of five possible scenarios, known as the grounds for divorce; adultery, unreasonable behaviour, 2 years' separation with the other party's agreement, 5 years' separation or desertion. Importantly, the form needs to be used to give the court jurisdiction in order to deal with any financial dispute on divorce, and the appropriate boxes ticked for this purpose. This is a key point that is often missed by a lay person, even when preparing a petition in conjunction with the detailed guidance notes.

'Issued' – once completed, the petition must be sent to the court to be processed. It will be checked to ensure that it is complete, assigned a case number and entered on the court system's records. It is then described as having been 'issued'. The date this took place can be critical if there is a dispute about whether a divorce should take place in this country or elsewhere.