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Divorce

Areas of Law

Family Law

 

When Marriage Breakdown

 

Marriage Dissolution

 

You must have entered into a legally recognised marriage in the UK. If you were married abroad, the marriage must be legally recognised in that country. To apply for a divorce, you must be married for at least 12 months. You can apply for a divorce in the UK if you can show that at least one of you is habitually resident in the UK.

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Curling Moore Solicitors

Expert legal services for private individuals & corporate clients

Ground for Divorce

 

Divorce or dissolution can only be applied for one year after the ceremony. The marriage or civil partnership must have irretrievably broken down and this can be proved by a number of facts. In divorce proceedings these are:

 

  • Unreasonable behaviour

  • Adultery

  • A period of separation more than 2 years if both parties agree.

  • A period of desertion for 2 years

  • A period of separation more than 5 years, where it does not matter if one party objects or not.

 

The above facts can also be used to dissolve a civil partnership except for adultery, as by its definition this would not apply to a same sex couple. Any infidelity can instead be cited under unreasonable behaviour.

 

Court Process

 

One party to the marriage (the Petitioner) files a petition at court with the original marriage certificate and the issue fee/fee exemption form.If undefended the Petitioner will apply for the Decree Nisi as a paper exercise (no Court hearing is needed), if defended the Petitioner will apply for Directions for Trial and a Court hearing date.

 

The Judge looks at the petition and certifies that the Court is satisfied the marriage has come to an end. The court places the petition in the list for the Decree Nisi and confirms the date and time of the pronouncement of the Decree Nisi to the parties. Neither party needs to attend Court. The Court will simply read the names and grant the Decree Nisi. Copies are sent to each party.

 

Six weeks and one day after the date of the Decree Nisi the Petitioner may apply for the Decree Absolute to end the marriage. You continue to be married until the Decree Absolute it made.

 

We can advise you as to the right course of action in your circumstances.

 

To find out more about the process of divorce and the legal requirements contact one of our solicitors. Our solicitors can meet you at any of our offices to talk about your situation. Contact us today to arrange an appointment. If you would rather speak to us on the phone, call our expert solicitor Christopher Aniche

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Frequently Asked Questions (FAQ)

 

What is a Decree Nisi?

 

A Decree Nisi is a provisional decree of divorce pronounced when the court is satisfied that a person has met the legal and procedural requirements to obtain a divorce. In summary, it is a document that shows the court is satisfied that you can divorce.

 

What is a Decree Absolute?

 

The Decree Absolute is a court issued certificate that concludes the divorce process.  It is the legal document that confirms that the marriage has officially ended.

 

What are the stages of divorce?

 

One party (called the Petitioner) files at court a divorce petition, the original marriage certificate, and a fee, currently £550. No divorce petition may be filed within the first year of marriage.

 

The petition must be based upon one of the following five “facts” – adultery, unreasonable behaviour of the other party, 2 years desertion by the other party, 2 years separation with the consent of the other party, or 5 years separation.

The petition is served on the other party (called the Respondent) and any Co-Respondent (in adultery cases), usually by the court.

 

The Respondent returns the acknowledgement of service to the court within 7 days of receiving the petition indicating whether he or she intends to defend the divorce.

 

If the Respondent indicates an intention to defend, which is unusual and the Respondent wishes to pursue that intention, he or she must file a document at court called an Answer within 28 days of receiving the petition and after various other procedural steps there will be a court hearing at which a judge will decide whether to pronounce the Decree Nisi (the provisional decree of divorce).

If the Respondent does not intend to defend the divorce, which is usually the case, the Petitioner makes a statement in support of his / her petition and applies to the court for the Decree Nisi.

 

The judge will consider the documents which have been filed and if satisfied that the ground for divorce is substantiated and that certain other prescribed requirements are met, will certify that the Petitioner is entitled to a Decree and will provide a notice of Decree Nisi date. This notice will fix a date for the pronouncement of the Decree Nisi and whether a costs order will be made.

 

The Decree Nisi will be pronounced on the date fixed.

 

Six weeks and one day later, the Petitioner may apply for the Decree Absolute (the final decree of divorce).

If the Petitioner does not apply for the Decree Absolute to be made, then the Respondent may do so three months later. This will involve a brief hearing before a judge.

 

The Decree Nisi is made absolute to finally dissolve the marriage. There is no court hearing.

 

How long does it take to get divorced?

 

If a divorce is undefended it will typically take a minimum of 4 to 5 months. If a divorce is defended it will typically take anywhere between 6 to 12 months. It may be advisable to delay applying for the Decree Absolute until financial matters arising from the divorce are resolved, if ending the marriage will prejudice that immediate financial provision.

 

Annulment as an Option?

 

An annulment is a different way of ending a marriage. You do not have to wait for a year before you can apply for a decree of annulment. Unlike a divorce that requires you to be married for at least twelve months, an annulment does not require that. For a union to be annulled, you must show consistent evidence that the marriage was not legitimate. In legal terms, this is referred to as “void”, or your evidence could prove that even though the marriage was legal, it meets one of the legal reasons that make it voidable. To commence the process of annulment, you will have to present a Nullity Petition to the court within a reasonable time from the marriage was contracted. Regardless of the void or voidable nature of the marriage, if a petition for Nullity is issued, you and your spouse can apply to the court for financial provision just as you can with a divorce.

 

What are Irreconcilable Differences?

 

It is a ground for divorce used typically in the jurisdiction of the United States. Here in England the only ground for a divorce is the irretrievable breakdown of the marriage. Irreconcilable differences or irretrievable breakdown both refer to the inability of two people to resolve their differences to remain married. The irretrievable breakdown of the marriage must be evidenced by one of five facts predefined in law – adultery, unreasonable behaviour of the other party, 2 years desertion by the other party, 2 years separation in consent of the other party, 5 years separation.

 

What if Children are involved in the Divorce?

 

If you and your spouse can agree the arrangements concerning the children, then there is no need for the court to get involved.

If you are unable to agree arrangements, before an application can be made to the court, the parties must engage in a MIAM (Mediation and information assessment meeting). A MIAM can only be carried out by an accredited family mediator. A MIAM will be used to provide parties with information about mediation and the suitability of mediation to try and resolve the dispute. The mediator will also assess the existence or risk of domestic abuse, or harm to your child, who would be the subject of any application. There are some exemptions to parties having to attend a MIAM.

 

If mediation is deemed suitable then meetings will be arranged. Once an agreement is reached a memorandum of understanding can be prepared by the mediator. So, everyone understands what has been agreed. The agreement is not legally binding in the sense of being enforceable by a court and you may wish to decide to create a consent order to be approved by the court.

 

If an agreement cannot be reached or if mediation is determined to not be suitable then the child arrangement programme will be invoked by the court once an application is made. This procedure applies where a dispute arises between separated parents and/or families about the arrangements concerning children. The programme is designed to facilitate and encourage the resolution of dispute outside the court system and, where not possible, the resolution of the dispute through the court system.

 

The basic structure of the programme is:

 

  • Application to court

  • Safeguarding checks by CAFCASS

  • First hearing dispute resolution hearing (FHDRA)

  • Case management directions if agreement not reached, including statements and section 7 reports where appropriate.

  • Fact finding hearing, if required

  • Dispute resolution appointment (DRA)

  • Further case management directions if agreement not reached.

  • Final hearing

 

Is it possible to separate without getting a divorce?

 

What if I don’t agree to the divorce?

 

Yes. You can apply for Judicial Separation. This is a formal separation sanctioned by the court. You do not have to wait a year from the date of marriage before petitioning for judicial separation. The marriage is not terminated. It enables the court to make orders about the division of money and property, however, as technically you are still married, the court cannot make pension sharing orders. This also means you are not free to remarry until a divorce is obtained. Judicial separation is not usually suitable for most people, however, couples in the following situation may wish to rely upon judicial separation proceedings.

 

  • If you have religious or moral objections to divorce

  • If you have separated and have not been married for more than year and you wish to resolve financial issues

  • If there is a financial benefit in not terminating the marriage through divorce.

 

What if I do not agree to the divorce?

 

If the Respondent indicates an intention to defend a divorce, which is unusual, and the Respondent wishes to pursue that intention, he or she must file a document at court called an Answer within 28 days of receiving the petition and after various other procedural steps there will be a court hearing at which a judge will decide whether to pronounce the Decree Nisi (the provisional decree of divorce) or not.

 

Funding Family Cases - Legal Aid

 

Usually, family law or legal disputes can be expensive, causing many to miss out on receiving the justice they deserve. That was reason legal aid was introduced to help people find the right legal solution to their problems, without worrying about the financial toll.

Legal aid ensures that you are not left unrepresented in the court room. However, depending on the case, your ability to qualify for legal aid is dependent upon your individual circumstances and is typically provided following means and merits testing. After these criteria are met, your representative will then be able to help you achieve a favourable result from your legal dispute or problem.

 

Do I qualify for Legal Aid?

 

Each legal aid application is assessed on a case-by-case basis, and to quality you will need to meet a series of key criteria. Your eligibility will be dependent on a series of important factors, most prominently both the type of case and your own financial circumstances.

Your financial situation will not be assessed in cases which relate to children in care or child abduction proceedings, but in all instances, it is likely you will have to submit evidence which prove the necessity of your case.

 

If you are an adult with parental responsibility for the child/ren proposed to be the subject of any care proceedings you will automatically be eligible for legal aid, so all families can benefit from the representation of our specialist team of accredited solicitors regardless of their financial situation.

 

For other parties involved in the case such as grandparents or aunts and uncles, it would depend on their financial situation and whether they are formally involved in these proceedings.

 

For other parties involved in the case such as grandparents or aunts and uncles, it would depend on their financial situation and whether they are formally involved in these proceedings.

 

Please note, Legal aid does not always cover all your costs. On some occasions, you may be required to pay some of the costs back or pay them upfront, however access to legal aid is still sure to help ease the financial burden.

 

Speak to a member of our legal team for specialist advice.

 

We understand that everyone’s circumstances are individual, and if you need legal representation, we will be happy to discuss your options confidentially. Call us on 02075373553.

 

 

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