Divorce Process Part 1: How to Petition for a Divorce

divorce

This is the first in a 4 part review of the divorce process entitled Petitioning for a Divorce.

The first step in a divorce suit is the filing of the divorce petition. This is by the Petitioner. The Petitioner in a divorce can be either the husband or the wife. The divorce petition requires that the grounds for the divorce to also be stated in the petition.

There are 5 grounds for divorce, being adultery, unreasonable behaviour, separation or desertion.

Overview

Who can divorce?

In order to obtain a Divorce in England or Wales, you and your spouse must:

  • have been married for at least one year;
  • and have grounds for divorce.
  • meet the residence rules; and
  • have a marriage recognised as valid by UK law.

Petition For Divorce

Petitioning for divorce is the first step in the divorce process. A petition is effectively an application to the court asking that the court disolve the marriage. The spouse filing the petition is called the Petitioner and the other spouse, receiving the petition, is called the Respondent

Issues that should be considered at this stage include:

1) Where to file the petition for divorce

There are certain residence requirements that you need to satisfy before filing a divorce petition in England and Wales. These are set out below. You should bear in mind that the law in Scotland is different and if either party live in Scotland or indeed any other country, then you really should seek professional legal advice before proceeding. Generally the English courts have jurisdiction to grant a divorce where either spouse:

(a) is domiciled in England or Wales when the proceedings are begun, or

(b) is habitually resident in England or Wales throughout the period of one year ending with the date on which proceedings are begun.

There are some other provisions too which we have not set out here, but they are particular to certain situations and if they apply to you then you should consider seeking professional advice before proceeding any further.

However; the majority of people contemplating a divorce will fall within one of the above categories.

Even if you are temporarily working abroad or perhaps assigned abroad in the armed forces or by your company, you will normally still qualify under the provisions listed above. It is sufficient if only one of the parties to the marriage is domiciled in England & Wales (or habitually resident ).

The other spouse can be living elsewhere in the world. Domicile is a legally defined word and does not necessarily mean what it says in the dictionary.

However; most people who hold British nationality are automatically considered to be domiciled in England & Wales irrespective of where in the world they live. It is not easy to change your domicile simply by emigrating to another country.

Therefore the majority of British nationals will be considered to be domiciled in this jurisdiction.

As for choice of court, you no longer have a choice. A special court has been set up where all divorces in England must be filed at Bury St Edmunds.

If a divorce gets complicated it will then be transferred to your local divorce court.

2) What grounds to include in the divorce petition

There is only one ground for divorce in England & Wales. That is that the marriage has irretrievably broken down. However; this ground must be supported by one of five facts. Facts are the reasons supporting the ground why the marriage has irretrievably broken down. One of the following five facts has to be proved in order for the divorce to proceed through the courts:

Fact 1. Adultery

Adultery is voluntary sexual intercourse between a married person and someone of the opposite sex other than the spouse. It must be shown that adultery has been committed and that you, the Petitioner, finds it intolerable to live with your spouse any longer. Bear in mind that this fact cannot be used if you continue to live with your spouse, as husband and wife, for more than six months after the last occasion on which you discovered that adultery had occurred.

It is not necessary to name the adulterous partner with whom the respondent has committed adultery, although this is done in situations where the petitioner wants to claim costs against them.

In citing adultery you need to be as specific as possible about dates and places if these are known. Please bear in mind that you cannot divorce your spouse on the basis of your own adultery. It must be alleged that your spouse was adulterous and not you.

Fact 2. Unreasonable behaviour

Unreasonable behaviour comprises behaviour by the respondent which affects the petitioner in such a way that the petitioner cannot reasonably be expected to live with the respondent any longer. Unreasonable Behaviour is not legally defined. However; it tends to cover most types of abusive or careless behaviour including financial irresponsibility, addictions and even adulterous relationships or sexual misconduct.

The petitioner must set out in the petition examples of the alleged unreasonable behaviour being relied on and usually we suggest that at least 5 or 6 examples of the behaviour are included. Not every example needs to be a serious incident.

A series of trivial events can justify the granting of a divorce. Where dates are known, these should be included and at least one of the incidents needs to have occurred within the six month period immediately preceding your separation or the date of the filing of the petition.

Fact 3. Desertion

Desertion is not often used. It requires that the respondent deserted the petitioner against their wishes for at least 2 years immediately preceding the date of the petition and, that the respondent had no justifiable cause to do so.

Fact 4. Two years separation and both parties consent to a divorce

This is also often called the ‘no fault’ divorce option. Essentially this fact does not seek to lay blame for the breakdown of the marriage on any of the parties. It is often relied on by divorcing couples seeking an amicable split, where they meet the requirements of the provision.

To start with you need to be able to state in the petition that you have been separated for at least 2 years immediately before the date of the petition. Separation does not need to mean that you have been living at different addresses. Separation generally means that you have no common life together.

This includes not sharing meals, not sleeping together and not sharing a common life together, such as washing, cooking or socialising. If you intend to rely on this fact, it is vital that the respondent agrees with the divorce proceeding on this basis. This is the only fact of divorce which requires the respondent’s express consent in writing and, signed, before it can proceed.

If there is any doubt as to whether your spouse will agree this fact, you should seek expert legal advice before incurring any court fees or filing your petition as otherwise it could cost you more to rectify the petition.

Fact 5. Five years separation

This fact applies after the parties to the marriage have been living separately for at least five years. It does not require the consent of the respondent, although the respondent still needs to be aware of the divorce petition and a copy must always be served on the respondent.

The Divorce Process

Once you have decided which court to file your petition in and the fact that you intend to rely upon, you will need to complete the divorce petition form. The court office can usually tell you which forms you need and the cost of starting the action.

The process will take on average anywhere from four to eight months if there are no complications, delays or disputes.The following information must be entered into the divorce petition form:-

  • the date of the marriage
  • address where you last lived together as a couple
  • present addresses and occupations of both parties
  • names and birth dates of any children
  • details of any previous court proceedings relating to the marriage or property
  • the fact being relied upon demonstrating that the marriage has irretrievably broken down

All questions must be answered and the wording used in drafting your petition is crucial. Most delays and problems in divorce petitions occur due to poor drafting or the use of the wrong words.

At the back of the divorce petition is a section called the Prayer. This is what you are asking the court to do for you. Essentially it says that you are asking that the marriage is dissolved. It also allows you to make a number of other requests concerned with children, money and property.

You should also set out in the Prayer whether you want the court to make an Order that the respondent pays the costs of the divorce.

The divorce process is then commenced by the filing at court of,

  • the petition for divorce in triplicate
  • the original marriage certificate (plus certified English translation if non-English certificate)
  • a certificate confirming whether or not the parties have attempted reconciliation
  • a cheque for the court fee which is currently £510

 

Frequently Asked Questions

What are the court fees for Petitioning for a Divorce?

At the time of writing this article the issue fee for a divorce petition is £510.

However; these fees regularly change and you should always check with the court to make sure of the exact current fee. Sending the wrong fee will cause delay in the filing of your divorce petition. If you are on a very low income, you may be able to apply to the court to waive the fees altogether.

Who should petition for the divorce? 

Either party to the marriage can petition for a divorce. Although you need to have been married for at least one year before the petition is filed at court.

It does not impact the outcome of the proceedings who starts the divorce process. However; the petitioner has more control over the speed at which the divorce progresses and that can sometime be a material consideration.

What about the financial settlement after Divorce?

This is a separate procedure and will usually require the assistance of a solicitor.

The information set out here relates only to the divorce process and not the financial aspects of the divorce. Settling the financial aspects of a divorce can be amicable or in some circumstances can be a hotly disputed matter.

Either way, it needs to be done formally and legally through the courts. Any amicable arrangements between the parties without the involvement of the courts may well not be binding and can cause serious problems later.

You should consult an expert Family Law solicitor about these issues, even if you are planning on filing your own divorce petition.

What if the Respondent ignores the Petition?

Sadly this can sometimes happen. If it does then you will need to arrange for the petition to be served on the respondent in person by a process server.

This will incur an additional charge. The court must always be satisfied that the respondent has been served with the divorce petition. Failure to serve the respondent will cause delay in the divorce progressing and is a complication.

If complications like this arise you should seek professional assistance – we specialise in complex divorces and can advise you of your personal circumstances.

Can both parties to the marriage have the same solicitor acting for them in their divorce?

No. Divorce is a contentious legal process. A solicitor can only act for and advise one of the parties to the marriage in divorce proceedings.

Can I get my divorce speeded up?

Generally speaking, no! In almost all cases the formal steps must be followed and the courts will rarely allow these to be altered.

However; a good divorce solicitor can always help in making sure that the process is as smooth and fast as possible with minimal delay. If you need a swift divorce, contact us.

Can I withdraw my Divorce Petition?

A divorce petition can not be withdrawn once it is filed.

I married abroad and I do not have my marriage certificate, the court will not accept my Petition without it?

This is a complication that will require the assistance of an expert divorce solicitor.

Should you have any queries about your own personal circumstances, contact us on 020 8401 7352.

The information provided in this article is general information only and it is not intended that you should rely on this information as advice relating to your specific circumstances.

Paragraphs 289A, 289B, 289C and 289D of the Immigration Rules on Domestic Violence

The following is an extract as of today’s date of the Immigration Rules relating to Victims of Domestic Violence in the United Kingdom comprising paragraphs 289A, 289B, 289C and 289D of the Immigration Rules. If you suspect that you are the victim of Domestic Violence and you have concerns relating to your immigration status, call our specialist immigration law team on 020 8401 7352 to discuss your circumstances.

Victims of domestic violence

 

Requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence
289A. The requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom are that the applicant:

(i) was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years as the spouse or civil partner of a person present and settled here; or;

(ii) was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years as the unmarried or same-sex partner of a person present and settled here; and

(iii) the relationship with their spouse or civil partner or unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (I) or (ii) above; and

(iv) is able to produce evidence to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence; and

(v) DELETED

Indefinite leave to remain as the victim of domestic violence

289B. Indefinite leave to remain as the victim of domestic violence may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 289A is met.
Refusal of indefinite leave to remain as the victim of domestic violence

289C. Indefinite leave to remain as the victim of domestic violence is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 289A is met.

289D. If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic violence only because paragraph 322(1C)(iii) or 322(1C)(iv) applies, they may be granted further limited leave to remain for a period not exceeding 30 months and subject to such conditions as the Secretary of State deems appropriate.

What is a Managed Divorce

What is a ‘Managed Divorce’

The Coop recently suggested that solicitors should stop charging for divorce work on an hourly basis. It’s an excellent idea and one that we have been committed to for the past 11 years. Indeed we first introduced our fixed fee fixed price divorce to the market in 2002. What this means is that you pay the fee agreed at the start of the matter. We cannot and do not hype our fees half way through. The only exception to this is if the matter becomes unduly complicated. That occurs very very rarely. In all the years we have conducted these fixed fee divorces for our clients there have been few occasions when we have had to ask clients to pay additional fees over and above those initially agreed. If indeed that ever happens, we always provide the client with a comprehensive explanation for the change in circumstances and have never had a single client fail to recognise that their matter genuinely and significantly changed during the course of the work.

But what about managed divorces? These are very popular with some people and can be purchased online for relatively modest prices. The consumer can be forgiven for wondering what they are getting for our fixed fee divorce and what they are not getting for a managed divorce from an online provider. Well, the answer is quite simple. Our divorce package is conducted by a solicitor and you will have the same level of service and attendance provided for a fixed fee divorce as you would have were you paying us an hourly fee rate. We take all the important information from you and conduct the whole job on your behalf. At every stage your solicitor will communicate with you, as a real person, by telephone, by email and whenever necessary face-to-face. We will explain every legal stage, prepare all your documents for you and take full responsibility for whatever happens. Indeed we are regulated by the Solicitors Regulation Authority and we are insured accordingly. As responsible legal advisers we are totally accountable for what we do. Therefore if we were to get it wrong, and I am delighted to say that has never happened, you have a real solution available. You can complain against us, get compensation from our insurers and even have us shut down if we are blatantly negligent. Looking at it from our perspective, we certainly are taking some risks with every divorce case we take on. We must be certain of what we are doing and moreover certain that what we are doing is right for you, our client!

So returning to the ‘managed divorce’ scenario, what exactly are they providing you? Well, we don’t really know the answer to that question. We know they sell you the divorce petition forms. Albeit that these are free to download online from the Ministry of Justice website. They also send you a brochure telling you how to fill in the form; but then again that guidance is also available from the Ministry of Justice website. Managed divorce companies do send you some glossy online brochures. Unfortunately we don’t. We just send you letters detailing all the processes and telling you what is happening. Therefore we certainly miss out on the glossy brochure part. Perhaps we will rethink that aspect of our system soon. But apart from the glossy brochure, which we stress is online and not printed anyway, what else are you getting from a ‘managed divorce’ website? Well the answer is on the site profile. They are DIY divorce merchants. That means it is a Do It Yourself Divorce. Therefore you Do It Yourself. They don’t do it for you. If that suits your temperament and your budget that all very well. We won’t deny that some people are happy doing it that way. But those same people could save even more money by buying a divorce pack from WH Smiths. Those only cost £20. Better still just download the forms and do it yourself for free. Why pay anything at all to anyone? After all the ‘managed divorce’ websites are not providing you with a solicitor. Some ‘managed divorce’ websites do have a single lawyer employed to meet the regulations. But the work will be conducted by tens if not hundreds of telephone staff. The lawyer will never see your file let alone represent you.

However; if you want peace of mind, satisfaction in knowing that legalities are being dealt with properly, on time and with your personal best interests at heart; indeed if you want to be certain that every aspect of the process is being negotiated in your favour and that your financial position and potential liabilities to your ex-spouse are addressed, then you would be our ideal client. Although some aspects of a divorce are straightforward and relatively simple, not all of it is like that. We recently represented a client who had purchased a cheap online ‘managed divorce’ 3 years ago. At the time, he was delighted and during the divorce process he settled the financial aspects of the divorce by paying his wife £160,000. Unfortunately for him his ex-wife came back 3 years later and claimed an additional £290,000 off him because the first settlement had never been set out legally and filed at court by his online ‘managed divorce’ advisers. It was a painful example of what can go wrong. Had he been represented by a solicitor that could never have happened, and indeed if it did then compensation for the additional claim and probably even for all his legal fees was not far away. In the circumstances though the managed divorce company got away by relying on a clause in their online terms of service which cleared them of all responsibility. It was one of those terms that appear on an obscure page of the website which nobody visits. All he did was check the box that says ‘I have read and accept the terms of service’.

If you want to be certain of what you are doing then like in every other aspect of life, you need to keep a careful watch out. Judging the value of services on cost alone is never a good idea and when it comes to buying legal services it can have a very hefty sting in the tail. Solicitors don’t just charge more because we are pompous money grabbers. No, we charge more than the fellow online because we know a lot more about what we are doing and we do it far more professionally. As regards the pompous money grabbing thing, you will also be pleasantly surprised to learn that we are far from that. We pride ourselves on being approachable, personable and very professional.

If you need legal advice on a divorce or family law related matter, call us on 020 8401 7352 to arrange an appointment or email us your enquiry at info@solicitorsfirm.com

BBC’s Panorama investigates Britain’s Sharia Courts

BBC’s Panorama investigates Britain’s Sharia Courts

The programme claims that domestic violence against women is being ignored by Britain’s Sharia Councils and further the programme claims to have evidence of this.

BBC One’s Panorama on 8th April is an undercover investigation of Britain’s Sharia Councils. Publicity for the programme states that in it women claim that they have suffered domestic violence ignored by the councils. Campaigners say that it is time to tackle the parallel legal system which can run counter to British law.

Link to BBC article: Are Sharia Councils Failing Vulnerable Women

Link to programme listing on BBC1 Panorama

Link to BBC article: Growing use of Sharia by UK Muslims

Link to BBC article: Some Imam’s ‘Biased Against Women’

The programme is broadcast at 8.30 pm on 8th April and will be available later on BBC iPlayer

Are Sharia Divorces (Talagh or Talaq) valid in English law

Are Sharia Divorces (Talagh or Talaq) valid in English law

 

If you marry abroad and obtain a Nikkah abroad in a country which practices Sharia Law your marriage will automatically be legally recognised in England & Wales. However questions can arise as to whether the same applies when you obtain a Sharia divorce, called a Talaq, from abroad. Unfortunately the answer is not straightforward.

 

A Talaq which is recognised in a Sharia Law practising country can be enforced and recognised in the England & Wales provided that some of the formal requirements set out in law are met. These requirements are:

 

  1. The husband or the wife must be a national of the country where the Nikkah was obtained under Sharia law; or
  2. The husband or the wife must be habitually resident in that country. This requires that the Sharia law country is their usual place of residence and that they ordinarily live there; or
  3. The husband or the wife must be domiciled in the Sharia law country. Domicile is different from habitual residence in law. Domicile is often gained at birth and therefore it is possible to remain domiciled in a jurisdiction even after having left that jurisdiction to live elsewhere. Domicile does not automatically change with immigration status.

 

When one of the parties to a Sharia marriage satisfies at least one of the above requirements, then the procedure to be followed in order for a Talaq to be recognised in England & Wales requires the following steps to be taken:

  1. The Husband is required to give notice in writing of  the pronouncement of the Talaq to the chairman of the Union Council of the ward in which the couple live; and
  2. The Husband must serve this notice on his Wife; and
  3. During the following 90 day period known as iddah there are provisions for attempts of reconciliation. During this period a Talaq can be automatically revoked if a reconciliation is successful.
  4. Where a reconciliation is not successful then following the iddah the talaq will take effect.

It is only in this manner that a Talaq obtained in a Sharia law practicing country will be recognised in English law.

The law will not recognise a Talaq where the husband has pronounced the Talaq in England & Wales alone. Therefore the process outlined above only applies to Talaq’s obtained outside England & Wales in a Sharia law practicing country.

 

For more information about Sharia law and divorce see our earlier post ‘divorce and talaq

 

Despite the above summary Sharia divorce is not a straightforward area of the law. It is fraught with complications and a careful balance must be reached between the expectations of the parties to the marriage and the requirements both of Sharia law and the laws of England and Wales. If you require any specific advice relating to Sharia law or Islamic divorces (Talaq), please telephone 020 8401 7352 to book an appointment to see a specialist divorce solicitor.