Divorce

We understand that divorce is not something that just happens to "other people".

We treat each case as being unique, both legally and emotionally.

Divorce can be an emotionally testing time and we can shoulder the burden of dealing with the legal and financial implications, to allow you to concentrate on rebuilding  your life. 

Most divorces are now a paper exercise, not involving personally attending Court.

We can advise you upon what is a realistic ground for your divorce, or give you advice upon what to do if you have received the divorce petition from your spouse.

We can usually achieve a Decree Absolute within 3-6 months, depending upon the co-operation from your spouse   

The most common ground for divorce is Unreasonable Behaviour, although we frequently petition for divorce on the grounds of Adultery or 2 and 5 years separation.

We also can advise you of the possibility of claiming back your legal costs from the other party.

We can usually provide a fixed quote for a straightforward, uncontested divorce.

Divorce – you as the “Petitioner”

Under the Matrimonial Causes Act 1973, to start divorce proceedings you have to show that not only the marriage has irretrievably broken down, but that you have a specific ground for the divorce proceedings, which will be explained at the end of this section.

If you start a divorce, a Divorce Petition will be forwarded to you for signature and thereafter it will be dispatched to the Court. A sealed copy will thereafter be sent by the Court to your spouse with a form called 'Acknowledgement of Service' which your spouse will sign and return, indicating they have received the Petition and do not intend to defend the case, to allow your divorce to proceed.

Divorce Costs

If, as you are entitled in “fault-based” divorces where you are the Petitioner, you have claimed costs against your spouse, then they can indicate their objections if appropriate. By claiming costs you may (it is not guaranteed) re-coup some of the fees you have paid for the divorce, which may still be necessary even in legal aid cases because of the legal aid charge, but please bear in mind it may not necessarily be practical to recover those costs, and frequently negotiations are made to waive them in exchange for co-operation with the proceedings.
If you are the Respondent in a divorce, then the usual order is that the Respondent pays the Petitioners costs, but this can vary according to the respective financial positions of the parties. Therefore sometimes it is "swings and roundabouts "as to whether costs are claimed against you, or you claim costs against them, or not. Sometimes it is tempting to try to "get in first "and beat your spouse to issue the divorce proceedings, so you can claim costs against them, however that tactic may not work if their financial position is worse than yours, as then often you have to meet the divorce costs up front as the Petitioner, but are unable to claim them back

If your spouse fails to acknowledge the paperwork then there are various measures that can be taken, such as an application for Bailiff service etc. which we can explain in more detail if necessary.

Thereafter, once we receive a copy of the Acknowledgement of Service form duly signed by your spouse, you will swear an Affidavit in support of your Divorce Petition which will provide the Court with further details regarding the grounds of your divorce. This will then be sent to the Court and in due course, the Court will examine the paperwork and if they feel that you are entitled to a divorce, list the case for the pronouncement of Decree Nisi. The effect of the Decree Nisi is that you are nearly divorced, but the final decree is the Decree Absolute. Please note that if you are the Petitioner and do not apply for Decree Absolute then your spouse can apply at a hearing 3 months after the final date that you could apply for Decree Absolute.

You need not attend the Decree Nisi Hearing (unless the issue of costs mentioned above is to be decided) and six weeks thereafter, we may lodge an application for Decree Absolute to finally dissolve the marriage.

The whole divorce procedure should take approximately 6 months, providing that it remains uncontested and no unforeseen problems arise. However, please note that this time limit can vary from case to case and from Court to Court. If there are financial or other issues concerning children to be addressed, then this may take longer.

If you are the Respondent - Please note that the above applies if you are a Petitioner, i.e. you are divorcing your spouse. If your spouse is divorcing you instead (i.e. you are the Respondent) then the above sets out the steps which your spouse will take, although please note that you will have a limited control upon how quickly your spouse progresses with the case. Sometimes a spouse may deliberately not apply for decree absolute in case it prejudices a financial claim. We appreciate that if you are the respondent in a divorcee, you may be unhappy about the allegations that have been made against you, particularly with unreasonable behaviour cases. The first thing you should bear in mind is your spouse is not making these comments gratuitously, but has to do so under the present legal system to avoid waiting two years for a divorce. It is still possible to allow the divorce to go through, whilst making clear that the allegations are not accepted and reserving the right to contest them in the future in other proceedings. It is usually a fruitless waste of money to defend divorce proceedings and generally speaking legal aid would not be available for it, unless there was a very good reason.

Please note that whilst the proceedings are ongoing, any periods of cohabitation with your spouse can act as a bar to the divorce. Therefore, if you live under the same roof as your spouse, you must ensure that you sleep separately and live as entirely separate households. We are assuming that you are not in or about to enter into a new relationship. If this is incorrect, please let us know as it can affect both the divorce and the financial proceedings, and re-marriage can be a bar to applying for financial provision.

Ground for the Divorce

There are five possibilities depending upon how long you have been separated. Please note that with most grounds for the divorce if you cohabit for over six months this can affect the validity of your Divorce Petition and unless we hear to the contrary we will assume that there are no periods of cohabitation we have to consider. Please note divorce proceedings can not be started until the first anniversary of the marriage

1. Adultery

This is only realistic if your spouse is prepared to admit adultery in writing as it can be expensive to prove otherwise, even if you feel that the situation is obvious. These days it is not necessary to include the co-Respondent (i.e. the third party) and although we can do this if you wish, it could delay the proceedings if the Co-Respondent fails to cooperate. Therefore if we use this ground, we assume that you are confident that your spouse will admit the adultery , we will assume unless you indicate to the contrary that we do not need to name the Co-Respondent. Please note that it is still technically adultery if the relationship takes place even after the separation. Further, if you cohabit for over 6 months after the last incident of adultery, then you are deemed to have forgiven your spouse and that allegation cannot be relied upon.

2. Unreasonable behaviour

This is the most common ground that is used about 90% of divorce cases. It can range from serious allegations such as violence, alcoholism etc. (please note if there are any domestic violence issues let us know and we can help with matters such as injunctions etc) through to a combination of less serious matters that you feel that has caused the marriage to break down. We are assuming that unless you advise to the contrary that there are no violent incidents to include in the Petition. We have taken instructions from you to indicate that there is evidence that can be used in the Petition. If your spouse disagrees with the grounds, it is still possible for them to let the divorce go through whilst indicating that all the allegations are not admitted. You have not asked us to warn your spouse in advance of the grounds for the divorce although we can do so if you wish.

3. Two years separation with consent

The two years will start from the point that you physically separated in circumstances, where you believed that the marriage was at an end. Please note this ground is entirely dependent upon the written consent of your spouse.

4. Desertion

This ground is rarely used these days and has certain legal and technical problems associated with it that makes it unsuitable for most divorces.

5. Five years separation

This allows you to divorce your spouse without making any allegations of fault providing you have been separated for five years. As with the two years separation procedure, the Respondent can ask the Court to consider his financial position after the divorce, which can delay Decree Absolute. (This is known as a hardship defence)

Divorce Costs

Initially, unless the court orders otherwise, each party is responsible for its own legal costs.

However, if one party is divorcing the other on a "fault-based "ground (e.g. adultery or unreasonable behaviour) it is possible for the Petitioner to reclaim those costs against the Respondent, on the basis that they have "won "the case.

Having said that, it is not necessarily a good idea to rush to be the Petitioner, as it will mean you will have to possibly lay these fees out up front, and if the other parties financial circumstances are worse than yours, you may not recover them anyway.

Usually, if a claim for costs is made in the petition, we would object to it in the acknowledgment of service form, and you can then decide, when the decree nisi is listed, whether it is worthwhile making a personal attendance at court to dispute that issue.

Many judges discourage parties from making a claim for costs, when each party probably has grounds against the other, but some solicitors continue to pursue them .

Maidments offers specialist advice on all aspects of family law to private clients throughout the Northwest of England. We have particular expertise in divorce, separation, financial, children issues and domestic violence. Please note we only offer legal aid in serious child protection cases.