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Contents

Introduction
Divorce - The grounds
Applying for a divorce
Service of the divorce papers
Once the petition has been served
Arrangements for children
Undefended divorce
Children - Parental Responsibility
The Children Act 1989.
Financial aspects of divorce
Domestic violence

Introduction

This is a simple guide to family law.

The breakdown of human relationships causes many problems. People who have separated or are about to separate are very often under great stress and the process of adjustment to separation is rarely easy.

We have prepared this guide to help people in the process of divorce understand more about the legal matters involved in the case. We hope it will help them in making the decisions which they have to make.

Our aim is always to attempt to deal with divorce as painlessly as we can. This cannot always be achieved - much depends on an individual client's own requirements and the way in which the other party to the case proceeds.

Young&Pearce are committed to the ideals and code of practice of Resolution, which is an association of family law practitioners.   Copies of their Code of Practice are available. One of the aims of the association is to reduce the amount of antagonism between parties to family law proceedings. In nearly every case, a great deal can be achieved by skilled negotiation and we will nearly always explore whether an agreed settlement of disputed matters is possible.

Our ultimate aim must always be to work for the best interests of our clients.

Divorce - The grounds

Divorce can only be granted by the court, nearly always the County Court.

The court will only grant a divorce where it is satisfied that the marriage has "irretrievably broken down".

It is not possible to apply for a divorce until a year after the date of the marriage.

In order to show that the marriage has broken down irretrievably, a wife or husband must show one of five things:-

Adultery That the other party has committed adultery (that is, has had sexual intercourse with someone else during the marriage).
Behaviour That the other party has behaved in such a way that he or she cannot reasonably be expected to live with the other party.
Desertion That the other party has deserted him or her for the last two years at least. In practice, desertion is not often used as a ground for divorce.
Two years' separation That the parties to the marriage have lived apart for at least the last two years and the other agrees to be divorced.
Five years' separation That the parties to the marriage have lived apart for the last five years (whether or not the other agrees to the divorce).

There are a number of special rules which apply in particular situations.

While it is beyond the scope of this publication to set all these out, two are worth mentioning:-

Sometimes, short periods of living together will not mean that the periods of two and five years mentioned above are broken.

A person who lives with his or her spouse for more than six months after discovering acts of adultery cannot normally rely on that adultery to obtain a divorce.

Applying for a divorce

To apply for a divorce, a person must issue what is called a petition.

A petition is a legal document setting out the basis on which the divorce is sought and the facts to be relied on.

The person applying for the divorce is called the petitioner. The petition is issued by sending it to the court with the marriage certificate and a fee.

If there are children involved, the petitioner must also send the court a statement setting out the arrangements for the children.

Service of the divorce papers

Once a petition has been issued a copy must be given to the other party to the marriage. This person is called the respondent.

The respondent must complete and send to the court a form to say that he has received the petition and whether the case is to be contested. This is called an acknowledgement of service. If the respondent does not send the court an acknowledgement of service, it may be necessary to instruct an enquiry agent to deliver the petition personally.

There are special rules which apply when the respondent cannot be found or deliberately avoids being served with a divorce petition.

Once the petition has been served

In the acknowledgement of service, the respondent must say whether he will defend the claim for a divorce. If he does, he must send the court what is called an answer, that is a written statement saying why he denies that the petitioner should have a divorce.

In most cases, the respondent does not defend the petition and the petitioner can go onto the second stage in the procedure. This is the stage at which the petitioner satisfies the court that he or she should be granted a divorce.

This is done by sending the court a sworn statement, called an affidavit, in which the petitioner tells the court that everything stated in the petition is true and provides certain other information.

The affidavit is then considered by a district judge who, if satisfied, will grant a decree nisi.

A decree nisi is not a final decree of divorce. However, once six weeks have elapsed after the grant of a decree nisi, the petitioner can apply for a decree absolute. It is the decree absolute which actually brings the marriage to an end.

Arrangements for children

If there are children involved, the petitioner cannot apply for a decree absolute unless the court is satisfied that satisfactory arrangements have been made for them. When the petition is filed, a statement is given to the court setting out the arrangements which have been made for the children. If the court is concerned that the arrangements may not be satisfactory, it can require the parties to attend a hearing at which the arrangements for the children will be considered in private.

Undefended divorce

The vast majority of divorces proceed as "undefended divorces", in other words the respondent does not oppose the divorce itself.

This is because there is often little point in a person defending divorce proceedings because:-

If one party to a marriage thinks that the marriage has irretrievably broken down then almost by definition it will have done.

From the point of view of resolving disputes about children or money, it does not matter which party obtains the divorce.

Children - Parental responsibility

Who is responsible for the welfare of the children when a marriage breaks up?

Where children are born during the course of the marriage, both parents have parental responsibility.

Parental responsibility is defined as:-

"All the rights, duties, powers, responsibility and authority which by law a parent has in relation to a child and his property".

The courts are often asked to decide disputes between divorcing parents relating to their children.

The guiding principal of family law is that the interests of the children are paramount.

The Children Act 1989

Disputes concerning children are dealt with in accordance with the Children Act.

The underlying philosophy of this Act is that courts should not become involved unnecessarily with disputes between parties concerning their children. The courts take the view that litigation concerning children can be harmful to the children and should therefore be discouraged. The idea is that wherever possible parents should sort out their differences through negotiation.

The court will take into account a number of factors when deciding a dispute relating to child.

These include:-

The wishes and feelings of the child so far as they are ascertainable, taking into account the age and understanding of the child;
The child's physical, emotional and educational needs;
The likely effect on the child of any change in the child's circumstances;
The child's age, sex, background and characteristics of the child which the court considers relevant;
Any harm which the child has suffered or is at risk of suffering;
The capability of each of the child's parents (and of any other person in relation to whom the court considers the question to be relevant) to meet the child's needs; and
Finally the court will look at the range of powers available to it under the Children Act and the proceedings in question.

What type of orders can a court make?

Orders which the court can make include the following:-

A residence order - an order settling the arrangements to be made as to the person with whom the child is to live;
A contact order - an order requiring the person with whom the child lives to allow the child to visit, stay with or otherwise have contact with some other specified person;
A specific issue order - an order giving directions to decide a specific question in connection with any aspect of parental responsibility;
A prohibited steps order - an order that a specified step shall not be taken in respect of the child without the court's consent.
Either parent in a divorce may apply to the court for any of the above orders. In this way disputes as to who the child should live with, who the child should see, where the child should go to school, whether or not the child should be allowed to be taken out of the country, etc, can be determined by a court.

Financial aspects of divorce

The court has wide powers to decide whether or not a party to a divorce should provide for the other party following the divorce and to decide how the property of the parties should be distributed.

Orders which can be made include the following:-

An order that either party shall make maintenance payments to the other including orders for the maintenance of the children;
An order that one party pay the other a lump sum of money;
An order that one party transfer property to the other;
Orders which have the effect of deciding which individual items of property belong to or should be retained by which of the parties to the marriage.

Note that an application for maintenance cannot be made by a spouse who has remarried.

While the court has power to order a party to pay maintenance in favour of a child of the family, such orders are now becoming less common because of the work of the Child Support Agency who now pursue child maintenance claims.

The court can order that the former matrimonial property should be sold. Such an order can contain a postponement provision stating that for example, the former matrimonial home should be sold but only after a specific period has expired. In some cases it is appropriate for the court to delay the sale of matrimonial property until the children of the marriage have grown up.

The Court has power to make orders in relation to pensions.

Where appropriate the court may make a Pension Sharing Order or a Pension Attachment Order.

A Pension Sharing Order transfers a specified percentage out of a party’s pension arrangement into a pension scheme for the benefit of the other party.

A Pension Attachment Order is a direction to the pension fund to hold a specific portion of a party’s lump sum and pension payable on retirement for the benefit of the other party to the marriage.

When deciding whether or not to make an order in relation to the financial aspects of the divorce, a court will take into consideration:-

The welfare of any children
The income, earning capacity, property and other financial resources of the parties to the marriage
Pension entitlement
The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
The standard of living enjoyed by the family before the breakdown of the marriage .
The age of each party to the marriage and the duration of the marriage.
Any physical or mental disability of either party to the marriage
The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family including any contribution by looking after the home or caring for the family.

The court will not look at whether any party was by his or her conduct responsible for the breakdown unless such conduct was such that it would be inequitable to disregard it. In practice, this means that a court will only look at a party's behaviour as relevant to the financial settlement if that behaviour was outrageous. In the words of one court, it would take the party's conduct into consideration only if it would be "repugnant to normal sense of justice to ignore that conduct".

Domestic violence

If a party to a marriage has experienced violence or harassment from the other party, it is open to that party to apply to the court for an injunction.

An injunction is a court order that requires a party either to behave or not to behave in a particular way. If someone breaches the terms of an injunction they are guilty of contempt of court and may be sent to prison.

Normally a court will want to see both parties to establish whether or not the conduct alleged has actually taken place. However, where a party can show that there is real immediate danger for serious injury or irreparable harm then a court may grant an injunction initially on the evidence of one party alone.

A publication of this kind can do no more than provide a brief outline of the law. Each case depends on its own facts and action should not be taken in reliance on this summary. As always it is desirable to take appropriate advice.