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The process of divorce: the petition
The first point is that in order to deal with the finances you need to actually sort out the divorce itself. The divorce itself is often referred to by lawyers as “the main suit”. For the court to make orders in relation to the house or in relation to maintenance, the main suit needs to be dealt with.
This is because the Matrimonial Causes Act 1973 section 23 states that the court can only make orders about property etc. “on granting a decree…or at any time thereafter”.
The basic process is that someone has to petition for divorce.
A court will not consider a petition if the parties have not been married for at least a year. That comes from The Matrimonial Causes Act 1973 section 3.
The other party is then meant to acknowledge service of the petition. They are supposed to indicate whether they intend to defend the petition or not. If the other party says they do not intend to defend the petition the court can consider the petition and decide whether to grant a decree. If the court grants a decree it will be a “decree nisi”.
After a decree nisi has been granted and a certain amount of time has gone by the parties can apply for a “decree absolute”. That will bring the marriage to an end.
In many cases the financial parts of the divorce are dealt with before the decree has actually been made absolute. Solicitors will usually not apply for a decree absolute before the finances are dealt with for the following reason. If one of the parties has a pension which has death benefits for a spouse, if the decree is made absolute and then the party with the pension dies, then the other party will no longer be a spouse and therefore may not get the death benefits.
Very often the parties will agree between themselves not to apply for decree absolute for these sorts of reasons. If on the other hand one party does want to go ahead and apply before the finances are dealt with it is not easy to stop this: See the case of Re G (Decree Absolute: Prejudice) [2003] 1 FLR 870.
Divorce petitions can be found online via government websites.
Divorce petition
Let’s go through the divorce petition. You can see one at: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008-eng.pdf
There are also guidance notes on filling the form in:http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d008-notes-eng.pdf
Pages 1 and 2 of the petition should be straightforward to fill in.
On page 3 most applicants will tick that they lived together as spouses at the last address. In most cases the parties will be ticking to say that the court has jurisdiction under article 3(1). The time to be particularly cautious is where one or both of the parties is living in a different country. That would be a time to seek legal advice.
On page 4 you need to say whether there have been any other proceedings in relation to the marriage or the children. The first part where you really have to do some thinking is part 5 which is headed “The fact(s)”. In the vast majority of cases people will tick that they are applying for divorce on the ground that the marriage has broken down irretrievably.
To show the marriage has broken down irretrievably you then need to rely on one of the 5 “facts”. These come from the Matrimonial Causes Act 1973. In many cases a number of the possible facts might apply. For example someone might have committed adultery (had an affair) and also behaved unreasonably. The person who is deciding which fact to pick needs to choose carefully. On the one hand you want to pick something which can be proved. On the other hand the process is likely to go a lot more smoothly and quickly if you try not to upset the other side.
In a case where your spouse has moved out and is living with another person and they accept this, the most straightforward thing may be to allege adultery (under fact 1). On the other hand, if you think they will dispute being in another relationship it would be better to rely on unreasonable behaviour.
In part 6 you have to set out some more detail about the “facts” you are relying on. This should be done as sensitively as possible.
I will now briefly run through the 5 “facts” and the sort of detail you would need to give in part 6:
The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent (this fact is not applicable in relation to a civil partnership) (only conduct between the respondent and a person of the opposite sex may constitute adultery for this purpose) You do not need to name the person. In fact doing so would be likely to raise the temperature. Better to put something along these lines in an appropriate case: “the Respondent has for the last 18 months been having an affair with a woman who I choose not to name. The Respondent admitted this to me a year ago. He moved out of the family home 6 months ago and has since been living with the woman who I choose not to name.”
The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent “Behaviour petitions” are very common. Again it is often possible to list the behaviour in a way which will reduce the anger and help it to proceed more smoothly. For example, instead of listing the occasions when the Respondent “attacked” the Petitioner, the statement in part 6 could read:
(b) You need to take with you copies of any documents you are including with your petition.
This will include a certified copy of the entry in the Register of Marriages. If you don’t have your original you can apply for one:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d183-eng.pdf
Note: make sure you keep a copy yourself. Record keeping is important.
(c) You need to take to court with you a copy of the petition and other documents for the Respondent.
(d) You need to pay a fee. There is a leaflet about which fees need to be paid. Sometimes people on low incomes do not have to pay. See especially the table of fees on page 12 of the following document:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex050-eng.pdf
