Family Law – Divorce Advice

Grounds for divorce

There is one ground for divorce: that the marriage has broken down irretrievably. Before a court can grant a divorce, it has to be shown that the marriage has broken down. This is done by giving evidence in writing of one of any of five facts. One of these facts has to be proven.

Facts

The five facts are:

  • the adultery of the other spouse;
  • the unreasonable behaviour of the other spouse;
  • two years’ desertion;
  • the couple has lived apart for two years and the other spouse consents to divorce; and
  • the couple has lived apart for five years (no consent needed).

If there are financial proceedings, or proceedings about children, they run separately.

The law does not permit divorces in the first year of marriage.

Family Law – Divorce Procedure

A divorce procedure is started by filing a petition at court that sets out the details of your marriage and your children and the reason that you want a divorce. The petition is in a standard form, with space for you to incorporate your own personal circumstances. The procedure is an administrative one, as long as the spouse being divorced does not defend it. In most cases, the procedures is completed in four to six months.

There are also other documents that need to be filed at the same time as the petition as well as a fee and we will discuss these with you when we know more detail about your circumstances.

The court will issue the petition and it will then be sent to your spouse. At this stage you become the petitioner and your spouse is the respondent.

The respondent then files an acknowledgement of service form, which gives the court certain information and tells it whether or not he or she intends to defend the divorce. If not, then the divorce can go forward on the “special procedure”.

The next stage is for the petitioner to file an affidavit with the court, which deals with certain legal technical matters like whether there has been any attempt at reconciliation (which in certain circumstances can affect a divorce). The petitioner also files a formal request with the court for a divorce, called a request for directions for trial.

A district judge will then look at all the papers and consider whether the case is suitable for divorce. In practice, judges rarely reject divorce requests. If the papers are approved, the judge will certify that the case can proceed to decree nisi.

A decree nisi is the penultimate stage of the divorce. It is pronounced in open court. It simply means that, if there is any reason why the parties should not be finally divorced, this reason should be put forward within the following six weeks.

The petitioner can apply for decree nisi to be made absolute after a clear six weeks have passed from the grant of decree nisi. If the petitioner does not apply, for whatever reason, the respondent can do so three months later as long as he or she gives notice to the petitioner. This leads to a court hearing. Your marriage will come to and end once the decree absolute is pronounced.

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