The divorce process and grounds for divorce

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In this episode host Catriona Attride is joined by Andrew Dennis, a solicitor in our family team, to discusses the divorce process. Together they provide an overview of the terminology often used in a divorce application and cover key topics including children arrangements and the financial process in divorce proceedings.

In this episode:

  • We outline the steps you need to take if you are considering a divorce.
  • We define what constitutes a 'marriage breakdown'.
  • We define unreasonable behaviour.
  • We explore how the length of your separation can impact the requirement for consent to produce a petition.
  • We provide an overview of the key terminology used in a divorce application including the decree nisi and the decree absolute.
  • We outline the stages of the financial process in a divorce.
  • We outline how arrangements for children are considered in a divorce.

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This episode is part of our Talking family and wealth podcast series. Learn more about the series and what we cover. This podcast is available on iTunes, Spotify and Soundcloud.

Read the transcript:

Catriona Attride: Welcome to Talking Family and Wealth, your straight talking guide to dealing with matters that are at the heart of the family in terms of planning for the future and protecting assets. And resolving difficulties that might arise in family relationships. My name is Catriona Attride and I am a private client lawyer with over 20 years, experience supporting clients in their estate and tax planning. In each episode, I'll be joined by an expert and together we'll lift the lid on how best to handle everything from inheritance to divorce. Along the way, we'll share some of the situations we've encountered. Some good, some bad, and many ugly, but all useful in helping you to protect your family and wealth.

Hello and welcome to this latest episode in our series of podcasts, Looking at private wealth and family matters. Today, I'm joined by Drew Dennis, and we're going to be looking at the divorce process and the procedures that have to be followed. Drew, welcome. How are you?

Andrew Dennis: I'm very well. Thank you. Cat, how are you?

Catriona Attride: Yeah. Good. Thank you. So we've got the cheery subject of divorce to look at. I suppose, at the outset, what I would ask is if a prospective client is considering separation or divorce, what should they be doing in terms of getting the ball rolling?

Andrew Dennis: I think the first step would be to try and take advice from a lawyer. I think it's better to have some knowledge about the process and the potential outcomes than to not to. So my first step would definitely be to seek that advice from the expert as they'll allow all the parties to know exactly where they stand. And understand the steps involved in the process, as well as listening to this podcast.

I guess the first point would be to say that you'd need to confirm that your marriage has broken down irretrievably.

Catriona Attride: And what does that mean?

Andrew Dennis: It means that one party in the marriage believes that the marriage is at an end and that is the only ground for divorce. However, there are five facts which can be relied upon within proceedings, which is adultery, unreasonable behaviour, desertion, and separation of two years, and five years. Unreasonable behaviour is by far the most common. However, others are also options.

Catriona Attride: And what sort of thing constitutes unreasonable behaviour?

Andrew Dennis: It's a very generic term and it's very subjective. It depends. My version of unreasonable behaviour is very different from anybody else's version. However, it's the behaviour from your spouse that you consider to be unreasonable. But you won't be judged on that. It's simply what you consider to be unreasonable, that has led down to the breakdown of the marriage.

Catriona Attride: And do the courts ever turn around and say, actually, no, this isn't unreasonable so you can't get divorced on this fact.

Andrew Dennis: It has been known, and there is a case to that point. However, it's not particularly common. However, as a result, any lawyer will tell you that the behaviour needs to be enough to reach the threshold. But it will be an individual judge that makes that decision.

Catriona Attride: So that's an advantage of having a lawyer, I suppose, in that when you're drafting the petition and having to set out that unreasonable behaviour, they can help you to make sure that you're putting enough substance in there.

Andrew Dennis: Yep. That's absolutely right.

Catriona Attride: Great. And can you just tell me, what's the difference between the two years of separation and the five years of separation?

Andrew Dennis: So other than the obvious difference in terms of a gap, two years separation needs to be via consent. So what you would do is to write to the other side and say that you've been separated from your spouse for a period of over two years and asked for their consent to produce a petition on those grounds. Whereas if you've been separated for over five years, then you don't need to have that consent from the other side. You can simply make an application along those lines.

Catriona Attride: So basically if the other side won't agree to a divorce, at the end of five years, they've got no choice and you can go ahead.

Andrew Dennis: Yes, that's quite right. It's not particularly common. However, it is an option that is available if a party is prepared to wait that long.

Catriona Attride: Okay. So a client decides they're ready. They want to go ahead. They've got their facts sorted out. They know what basis they're going on. What happens next?

Andrew Dennis: So they've sought the legal advice from a solicitor. And then a draft of the petition gets sent to the other side, purely to try and attempt to agree on the position in advance. This avoids any knee jerk reactions or any upset in terms of the petitioner's contents. And prevents any animosity between the parties when their position is already difficult already. Hopefully, the ex-spouse will agree and the petition gets sent to the court. However, it's always important to note that there's a court fee of 550 pounds to issue proceedings. Now I'll qualify this, in there is a fear remission if a party is on low income or on certain benefits. However, if you seek legal advice, your lawyer will be able to advise you about this in the meantime. I do think it is important to say that a petitioner isn't necessarily at an advantage by starting the process. As a court is not usually interested in the reason as to why the marriage has broken down.

Only that, as I said earlier, that the marriage has broken down irretrievably. The court tends to be more concerned about what the resources are and how they're going to be divided fairly at the end. What I will say is that on occasion, certain people do decide to defend a petition if they disagree with the contents. However, it's costly and time consuming when the ultimate outcome is going to be the same, namely the decree absolute. So we would always advise against this, but it reiterates why you should try and send a draft of the petition to your ex-spouse in the first place.

Catriona Attride: So I suppose they know what's coming and it doesn't come as a big surprise.

Andrew Dennis: No, Absolutely.

Catriona Attride: And this is all to do with the fact that, the UK divorce system is a no-fault system, isn't it? So it's that thing of people not getting penalized because of their behaviour, or because of their affair, or anything like that. The court isn't really interested in any of that, are they?

Andrew Dennis: No. I can totally understand why it would be upsetting for a party to receive a petition where they've been accused of the behaviour. But sadly, that is one of the issues with the divorce process at the moment. There is potential for a totally no-fault divorce to come in and was being debated in the house of commons over the past few months. However, with COVID, it has been put to the back of the cube, but hopefully, that will change in the near future to try and make it a little less hostile.

Catriona Attride: Yeah. Yeah. Which would take some of the heat out, I suppose. So once you [crosstalk 00:07:04], yeah, absolutely. That's what we think. So once you have issued your petition, you've paid your fee, it's gone off to the court. What happens next?

Andrew Dennis: So once it's been issued, the petition is given a case number and it will be sent to the spouse along with an acknowledgement of service form. It's a double-sided document. It's very simple but contains details as to whether or not the court has jurisdiction to hear the case in the first place. And whether or not the spouse intends to defend the case. In the majority of cases, the acknowledgement of service form is returned, no problem. There is the possibility that your ex-spouse will avoid dealing with it. And there rise the potential to get them personally served. But I won't go into too much detail on this podcast. The acknowledgement of service, if it's returned to the court will then be sent to the petitioner to create and produce a statement in support. And their application for decree nisi, which is the next step. Realistically, the judge will look at the paperwork and consider the contents of the petition and decide whether or not they're entitled to seek a divorce on the ground sought. So for example, the unreasonable behaviour or the adultery.

Catriona Attride: So can you tell me about what the statement of support is?

Andrew Dennis: Sure. So the statement in support is another simple document, which confirms whether or not the contents of the petitioner are true. And it's an opportunity for the petitioner to change the contents of the petition, if necessary. It also asks for details in respect of unreasonable behaviour and whether or not that is continuing. And whether the parties have lived together at any point, following the breakdown of the relationship. In generally the case in divorce proceedings, it is a paperwork exercise. However, it's just another bit of paperwork that supports the petition.

Catriona Attride: Great. Thank you. So the first thing that gets issued by the court before the divorce is finalized, is the decree nisi, isn't it? What does that do? And what can we do with that?

Andrew Dennis: So the decree nisi is the first main stage of the divorce proceedings. So it means that the court has looked at the paperwork, and believe that the parties are entitled to get divorced. There's usually a hearing to decide this, however, it's a formality. Neither party will be required to attend. The only time that parties are called to attend the decree nisi hearing is if both parties have filed a petition. So in the case of a defendant divorce, or if there is a dispute as to whether or not the petition is going to be proceeding with any costs claim. However, it's not particularly relevant. And it doesn't happen very often.

Catriona Attride: So it's literally done with nobody there.

Andrew Dennis: The vast majority of occasions, it tends to be a judge, sat in a room doing numerous of these forms. And as I said before, it's a paperwork exercise.

Catriona Attride: Yeah. Okay. So assuming the divorce runs smoothly, what's the next step after the nisi has been pronounced?

Andrew Dennis: So the final stage of the divorce is for the petitioner to apply for the decree absolute, which is the final stage. And this can be made six weeks and a day after the date of the decree nisi. I don't know exactly why it's six weeks and a day, it just is. The decree absolute is the final decree that dissolves the marriage. And it frees both parties to marry other people should they wish to do so. What is worth noting, is that if the petitioner, in any case, fails to apply for decree absolute within four and a half months of receiving the decree nisi, then the respondent can do so instead. The respondent must attend court to do it because there needs to be a good reason why the petitioner has not yet applied. And this is often to do with financial arrangements. However, it's worth noting. So that if there's a respondent whose spouse is refusing to apply, there is an option.

Catriona Attride: So is it usual that if the finances haven't been sorted out that the decree absolute doesn't get applied for? Or can you go ahead with the decree absolute and finish off the finances later?

Andrew Dennis: You can deal with the decree absolute first, however, we wouldn't advise it. Purely because the divorce only deals with dissolving the marriage. And as I said before, it's a paper-based exercise. Financial claims remain open until they're dealt with by the court. So we would always advise clients to focus their time, energy, and costs on that aspect as opposed to the divorce itself. Because that will effectively run along in the background. So we would always advise, don't apply for your decree absolute until the financial proceedings are settled. And any financial order has been made by the court.

Catriona Attride: And will the court accept that as a reason? So if the petitioner is the one who needs the finances sorted, and that's why they haven't applied for the absolute. And then the respondent comes along and makes the application, will the court take the petitioner's views on board? And the reason why they don't want the absolute yet is because the finances are outstanding.

Andrew Dennis: Yes, that's right. Because the court will always be keen to make sure that all parties are settled for want of a better phrase, at the end of proceedings. And that there isn't a possibility for either party to come back in the future. It's far easier for things to be settled immediately, as opposed to having a historical claim several years down the line.

Catriona Attride: So I suppose the only real reason for rushing the absolute through is if you're in a big rush to get married again. Which, not many people are I don't think after a divorce, are they?

Andrew Dennis: No, that's right.

Catriona Attride: Okay. So, I mean, you've just said the completion to do a divorce process doesn't mean that the client is going to get a clean break. Are there any aspects of the financial settlement that we need to think about in all of this?

Andrew Dennis: I guess it would be useful just to go through the financial process and try and do a whistle-stop tour.

Catriona Attride: Yeah, that would be weird.

Andrew Dennis: Sure. If a party wants to finalize their position, we again, we would suggest that they seek legal advice from an expert just to talk about costs, and time scales, and outcomes. Because it's a widely held belief that finances are the most complicated area of family law. We would advise that realistically, you need to try and negotiate with your ex-partner first, mostly to avoid issuing financial remedy proceedings as they're both times consuming and costly.

If that doesn't work, we'd normally refer to a mediator who is usually a qualified solicitor and thoroughly independent. Who will talk to both the parties and to try and broker an agreement? If that isn't possible, so for example, if the mediator says that the case isn't suitable due to issues of domestic abuse, then we would suggest applying to the court and lodge a document known as a Form A. And this will start the financial remedy proceedings. However, please note that there is a court fee of 255 pounds in order to issue that. So it's just a consideration to take into account at the beginning.

Catriona Attride: And it is really important, isn't it? If someone was deciding to try and do that divorce themselves, that they do get the finances done and dusted at the end. Because otherwise, you can leave yourself open if you suddenly have a lottery win, or come into money that your former spouse can come back and have another crack at you.

Andrew Dennis: Absolutely. And there have been cases in the past where parties have built up a business from nothing, either towards the end of their marriage or following it. However, because they've not finalized their finances, the other party has come back and said, well, I fancy a little bit of that. And have got various assets or figures from their ex-partner as a result, which would've been avoided, had a financial settlement been reached beforehand.

Catriona Attride: So it's almost the most key part of all of this, isn't it?

Andrew Dennis: I agree. Yeah. Quite right.

Catriona Attride: And can the arrangements for children or issues arising around children delay the divorce? Or again, are they just totally separate?

Andrew Dennis: They tend to be separate. However, at the end of a relationship, there are bound to be all sorts of issues. And obviously, children are going to take a big part of that.

Again, I would say the same as I'd said, in terms of the finances, if any party wants to discuss the matter, take legal advice at the outset, just to talk about costs, et cetera, and timescales. And what the outcomes could be. And we go down the same three-stage process of, attempt to negotiate first to avoid issuing proceedings. If not, we'll refer you off to mediation again, to see if you can broker an agreement without issuing proceedings. But if court proceedings are inevitable, then we are going to be there to assist you if necessary.

Catriona Attride: And I suppose there must be cases where one party or the other almost uses the children as part of the financial negotiation. And so they will become intertwined, I guess, in an acrimonious case.

Andrew Dennis: No, you are absolutely right. Whilst these proceedings are separate, feelings obviously run high and it's not uncommon for children to be used as a weapon. However, our advice would be, don't do this. Children should be allowed to be children. And any delay doesn't really help anybody. So don't weaponize the children.

Catriona Attride: No, I think that's really good advice. Isn't it? Well, Drew thank you very much for giving us that outline on the process. I think it's quite helpful to understand the steps and how the different parts fit together or don't, as it might be. So thank you very much for your time today.

Andrew Dennis: No problem. Thanks a lot.

Catriona Attride: Thank you for listening to Talking Family and Wealth. To find out more about the series, please visit forward slash talking family and wealth. From here, you can subscribe for all updates, meet our speakers, and get more information on all of the topics being discussed.

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