Divorce — overview

The Family Procedure Rules 2010 have introduced a change in the terminology in divorce proceedings. There are however some inconsistencies between the terminology used in the rules, which use the new terms, and those referred to in the forms which refer to old terms . Divorce proceedings are referred to as matrimonial proceedings. Proceedings for divorce or a matrimonial order must be begun by an application for a matrimonial order, still referred to as a petition.

Bar on petition for divorce

There is an absolute bar on presenting a petition for divorce until the parties have been married for one year.

The ground for divorce

There is one ground for a divorce: the marriage has broken down irretrievably. The court cannot make a finding of irretrievable breakdown unless satisfied on one or more of the five facts listed in the Matrimonial Causes Act 1973 (MCA 1973):

• adultery: the petitioner must prove that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent; there is now no requirement to name the person with whom it is alleged the respondent has committed adultery even if their identity is known, but if they are named then they must be made a party to the proceedings

• unreasonable behaviour: the petitioner must prove that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent

• desertion: the petitioner must prove that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition

• living apart for two years: the petitioner must satisfy the court that the parties to the marriage have lived apart for a continuous period of at least two years preceding the presentation of the petition and the respondent consents to a decree being granted; the parties may live as separate households but under the same roof

• living apart for five years: the petitioner must satisfy the court that the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition; the same considerations apply as for two years' separation but no consent is required

In relation to all five facts there are specific considerations if the parties live together for six months or more.

Petition and supporting documents

Proceedings for divorce will be commenced by petition in any divorce county court or the Principal Registry of the Family Division.

Contents of a petition

The Family Proceedings Rules 1991 (FPR 1991) (for petitions issued prior to 6 April 2011) or the Family Procedure Rules 2010 (FPR 2010) (for petitions issued on or after 6 April 2011) prescribe what must be contained in a petition for divorce. Care must be taken in the drafting of the petition as the court will reject the petition in the event of failure to present the information correctly.

Documents to be filed

• the petition, with sufficient copies for each party

• statement as to arrangements for children, if there are minor children, plus copy for the respondent

• certificate with regard to reconciliation (if a privately funded case)

• the original marriage certificate or a certified copy

• notice of acting

• the court fee or an application for exemption from fees

Statement as to arrangements for children

Where there are minor children of the family under the age of 16, or over that age and receiving instruction at an educational establishment or undergoing training for a trade or profession, the petitioner must file a written statement signed by the petitioner agreed, if practicable, by the respondent containing the information regarding the proposed arrangements for the children required by FPR 1991 (for petitions issued prior to 6 April 2011) or FPR 2010 (for petitions issued after 6 April 2011). Where the arrangements are not agreed, the respondent may file their own statement with the Acknowledgment of service form.

Service

The following documents must be served personally or by post on the respondent (and co-respondent if applicable ):

• a copy of the petition

• Notice of Proceedings

• Form of Acknowledgment of Service

• a copy of the statement as to arrangements for children

These will be served by post by the court unless the petitioner requests otherwise or the person to be served is a person under a disability (a child or a protected party). Specific rules apply to service out of the jurisdiction of England and Wales.

Evidence of service must be produced to the court. Generally, this will be the acknowledgment of service form signed by the respondent or their solicitor. Where difficulties are encountered with service, consider:

• bailiff service

• an application for leave (permission) to substitute service (for proceedings issued prior to 6 April 2011) or an application for service by an alternative method (for proceedings issued after 6 April 2011)

• an application to dispense with service

• an application for service to be deemed

The respondent has seven working days in which to return the acknowledgment of service indicating whether they intend to defend the divorce. If defending, the respondent has a further 21 days to file an answer.

Amended petitions and supplemental petitions

To add additional charges, eg allegations of behaviour that occurred prior to the date of the petition, the petition may be amended. If the charges occurred since the date of the petition, a supplemental petition must be filed. Prior to the filing of an answer a petition may be amended or supplemental petition filed without leave (permission). Once an answer has been filed, leave (permission) is required. No pleading may be filed or amended without leave (permission) after directions for trial have been given or, in the case of proceedings issued on or after 6 April 2011, application has been made for decree nisi.

Restrictions on decree being made absolute

In the case of petitions relying on separation for two or five years, the respondent may apply to delay the grant of decree absolute. There are other circumstances prescribed under MCA 1973 in the case of certain religious marriages in which pronouncement of decree absolute may be delayed.

Undefended causes

The majority of divorces proceed undefended in the special procedure. To apply for the first stage of the decree proceedings the prescribed form of request for directions for trial (for applications issued prior to 6 April 2011) or application for decree nisi (for applications issued on or after 6 April 2011) and an affidavit in support of the petition should be filed. If satisfied on the procedural requirements, the district judge will give directions for trial and enter the cause in the special procedure list (for petitions issued before 6 April 2011) or direct that the application be listed for the making of the decree (for petitions issued after 6 April 2011). At that stage the evidence is considered. If satisfied that the contents of the petition have been sufficiently proved and the party is entitled to a decree of divorce, the district judge will certify so and consider the position as to costs if appropriate. Further evidence may be required in some cases.

If there are children to whom MCA 1973, s41 applies, the court must consider whether to exercise its powers under the Children Act 1989. If satisfied that there are no children, or there are but it does not need to exercise its powers, the court will issue a certificate of satisfaction. If the court is not satisfied, further evidence or a directions appointment may be required.

Notification of the time, date and place for pronouncement will be sent to the parties. Pronouncement of decree nisi is a formality and unless a party wishes to be heard on costs it will generally not be necessary for the parties or their representatives to be present.

Defended divorces

If the respondent wishes to defend the proceedings, they must file an answer within the prescribed time limit unless leave (permission) is obtained. After directions have been given, leave (permission) will be required, as will an application to have the district judge's certificate set aside.

An answer should be filed with sufficient copies for each party and the court fee. Service is generally effected by post through the court.

The answer may contain a prayer for cross-relief.. The same rules relating to amendment and filing of supplemental petitions apply to an answer.

The petitioner may file a reply to the answer 14 days after service.

An application for directions for trial as a defended cause (for applications issued prior to 6 April 2011) or an application for a case management hearing (for applications issued after 6 April 2011) should be made pursuant to the rules.

Decree nisi

Where the court is satisfied that the petitioner has proved the contents of the petition so as to be entitled to a decree of divorce, the decree nisi will be granted.

Decree nisi may be rescinded in certain circumstances.

Decree absolute

The party who obtained decree nisi may apply to have the decree made absolute six weeks and one day from the date for pronouncement of decree nisi by lodging the prescribed form with the court fee. If the district judge is satisfied on the prescribed matters, he or she will make the decree absolute.

If the party entitled to apply for decree absolute does not do so then the respondent may apply on notice three months and one day after the petitioner could first have applied.

Pronouncement of decree absolute may be delayed where the court has granted a decree nisi on the basis of two years or five years separation and the respondent has applied for the court to consider their financial position as it will be after the divorce.

If application for decree nisi to be made absolute is made more than one year after the date of pronouncement of decree nisi, further information, including the reason for the delay, will be required.

Decree absolute may be expedited in rare cases and application is made on notice.

The effect of a decree absolute includes:

• financial orders for periodical payments, lump sum and property adjustment orders can take effect and are then capable of implementation

• there are consequences for wills: the appointment of a former spouse as executor or trustee will not be effective and bequests will lapse, unless a contrary intention appears