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. At Optimal Solicitors, we are 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.
We can assist you, no matter how complex you consider the matter. This could be on the basis that you simply need our assistance in respect of some aspects of the process or alternatively it could be that you would like to instruct us to take on the whole matter. If you consider you need our advice, please do not hesitate to contact our office and our helpful team can assist you.
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. Optimal Solicitors has long considered it imperative for individuals considering divorce to appreciate the alternatives mentioned above as such action, once completed, terminates the marriage. This is drastic action and we are keen to ensure that you fully appreciate and understand the implications of such action.
We often experience clients who become upset at the mention of reconciliation when they attend to discuss termination of their relationship. However, we have a duty to provide you the best possible service and this includes ensuring that you understand there are alternatives available.
Alternatives to Divorce
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. However, we in no way force this upon our clients and if you consider that the relationship issues cannot be resolved, we can assist you accordingly. 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.
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.
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 ).
- 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
We shall advise you regarding the process both orally and in writing. We shall take your instructions and draft the petition bundle. When this is approved and finalised, we shall file the documentation with the Court and seek for them to issue the documentation and assign it a case number.
- Step Two
The Court will then consider the bundles and if they consider the documentation is complete, they will normally issue the case and assign it a case number. The Court will also 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 and we will not discuss those herein. If you have any questions, do not hesitate to contact our office. If the Respondent does not defend the proceedings, their involvement is usually finished at this stage and we can progress the divorce for you.
- 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. We would need to complete an application and a statement in support on your behalf. The Judge will then consider the file and consider if the legal requirements have been fulfilled and 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. We can provide specific advice on this stage.
- Step Four
Upon the Decree Nisi being pronounced and granted, we can make the application for Decree Absolute. The law requires us 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?
We always work diligently and seek to progress matters as soon as possible. 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.
Fees & Fee Remission (EX160)
This information is provided at the time of writing and may be subject to change. We offer a competitive fixed fee for straightforward and agreed divorces whilst also offering competitive fee estimates for complex matters. Please do not hesitate to contact us so we can consider your circumstances and provide a fee estimate. The Court fee is currently £550.00. However, not many people are aware that you could apply for a fee remission application which could reduce or completely waive the fees.
If you would like to instruct us, then please contact us and we will need to complete some initial documentation and take instructions from you. The initial considerations we shall discuss with you will include the following:
Who can get help with fees?
You may not have to pay a fee, or you may pay a reduced fee if you:
- have no savings or investments, or only a small amount
- and receive certain benefits
- or are on a low income
If you feel you may be eligible, please inform us and provide the following information to help us consider this issue:
- Your National Insurance number;
- Your date of birth;
- Your monthly salary (evidenced by 3 months’ payslips);
- Details of all benefits you are on (name of benefit, the exact amount you receive and how often);
- Details of any other income you receive (e.g. child maintenance, money from family);
- How many children you have?
If your monthly income falls below a certain threshold, we can apply to the Court to have the fee reduced. Just because you are on certain benefits it does not automatically entitle you to a fee reduction. This is a decision for the Court. Please visit: https://www.gov.uk/get-help-with-court-fees for in-depth information.
The Next Steps
If you seek our assistance, we ask that you contact our firm and discuss the following:
- Full and proper consideration of alternative dispute resolution to consider any linked issues and the issues of reconciliation to decide if the marriage has in fact broken down irretrievably.
- The other party’s full name and address;
- The original Marriage Certificate or a certified copy. If this is not in English, you will need a certified translation. We can assist you to receive the same if you are unsure.
- The application can also be completed through the post. If we are instructed, we would finalise and process the documentation by post.
- The applicable Court fee or a completed fee remission application (EX160) will need to be considered alongside our fees.
Optimal Solicitors can reached on 0161 250 7771 or by way of our website www.optimalsolicitors.com
The author of the article is our solicitor -
Azhar Hussain, who is also Head of Family Department