Family Law
DIVORCE PROCEDURE EXPLAINED
There are three separate legal proceedings which may take place. Proceedings relate to the separation between the parties, the financial arrangement (Ancillary Relief proceedings) and proceedings which relate to the children, who are under the age of 16 at the time proceedings commence. (This involves the arrangement of the children, most commonly contact arrangements and where the child is to reside)
The Separation:
One party (the petitioner) files the divorce petition at court, together with other various documents and pays the court fee.
Parties are barred from petition for a divorce within the first year of the marriage. Thereafter a petition may be filed by either party on one ground; The relationship between the petitioner and respondent has irretrievably broken down.
Although there is only one ground for divorce, there are five possible facts the Petitioner may rely upon in the petition:
1. The adultery of the Respondent
2. The unreasonable behaviour of the Respondent
3. Two years desertion by the Respondent
4. Two years separation by consent
5. Five years separation
Once the petition is filed, it is served upon the respondent who is required to acknowledge it within seven days and to state whether he/she intends to defend the petition.
If the respondent indicates an intention to defend, he/she must file an answer within 28 days of receiving the petition. This is unusual and ultimately, there will be a Court hearing at which a Judge will decide whether or not to pronounce the Decree Nisi (the provisional decree of divorce).
In the event that the respondent does not defend the petition, the petitioner swears an affidavit in support of his/her petition and applies to the Court for the decree nisi. The Decree will be pronounced on a fixed day at open court, of which neither party need to attend.
Six weeks and one day later, the petitioner may apply for the Decree to be made absolute. If the petitioner does not apply, the respondent may do so three months later.
Upon the grant of the Decree Absolute, the marriage legally comes to an end.
Ancillary Relief:
The financial proceedings can only be ancillary to the divorce proceedings and cannot be brought independently. Consequently, the Ancillary Relief proceedings will always bear the same case reference as the one given in the divorce proceedings.
Following the filling of the divorce petition either party may apply to the Court to make an Order in relation to the parties’ financial affairs. The Court has jurisdiction to deal with the following:
1. Maintenance pending suit
2. Periodical Payments
3. Lump sum payments
4. Pension sharing Orders
5. Pension attachment Orders
6. Property adjustment Orders
7. Order for the sale or transfer of the property
In making a fair Order the Court will consider the factors of section 25 of the Matrimonial Causes Act 1973 being;
(a) The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future,
(b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future,
(c) The standard of living enjoyed by the family before the breakdown of the marriage,
(d) The age of each party to the marriage and the duration of the marriage,
(e) Any physical or mental disability of either of the parties to the marriage,
(f) The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family,
(g) The conduct of each of the parties if that conduct is such that it would be in the opinion of the Court is inequitable to disregard,
(h) The value to either of the parties to the marriage of any benefit (for example, a pension which by reason of the divorce, that party will lose the chance of acquiring.)
Ancillary Relief proceedings are exercised by the Court in three stages;
1. Finding out the value of the parties’ assets
2. Deciding the ratio of distribution
3. Considering the quality of assets and the practicability of the distribution and its execution.
The Procedure
Either party may start the Ancillary Relief proceedings by filling in a form (Form A) – Notice of intention to proceed with an application for Ancillary relief.
Ancillary Relief may involve three possible Court hearings. Regardless of this, the parties are at liberty to settle their differences at any point in time by consent. The court will approve the consent order in most circumstances provided that the Court is satisfied that both parties received adequate legal advice.
In the event a compromise was not reached, after form A is filed the parties will be required to serve and file a full written statement of their financial affairs (Form E) to enable the Court to determine the value of the assets. It is common for parties to be dissatisfied with the information provided by their spouse on the Form E and consequently further questionnaires may be raised by either party.
The first hearing – 14 days before the first hearing each party must serve a concise statement of issues on the other party, a chronology and a questionnaire setting out any further information required.
The first hearing is designed to give further directions if necessary and ascertain whether there is anything else outstanding in respect of the parties’ disclosure and disclosure of documents and to ascertain whether there is any prospect of settlement.
The second hearing (FDR) – The Financial Dispute Resolution is an attempt to agree the division of assets between the parties by consent. It will normally take place after the information provided by both parties has been exchanged and questionnaires were answered to the parties’ satisfaction. The Judge will then try and settle the claim by approaching the parties and highlighting the potential shortfalls of their claim. If a compromise is not reached then the Judge will proceed to give further directions to trial.
Final Hearing – If differences could not be abridged then a full trial is to take place, where the Judge will decide the division of assets and the way in which it should be done.
The Judge will then make an order which will be binding on both parties.
Children
It is significant to acknowledge that the Courts are no longer empowered to deal with child maintenance. This is an area dealt by the Child Support Agency (CSA).
The Main two common areas in dispute over children are arrangements for contact by the non resident parent and determining with whom the child should reside. An application to the Court will normally be lodged by the non resident parent.
The Court tendency is to allow the parents to agree such arrangements, failing which the Court will appoint a Children And Family Court Advisory Support Service officer (CAFCASS) to advice on the matter. The CAFCASS officers may interview and visit the parties to enable them to recommend their findings to the Court. In most cases the Court will follow CAFCASS advice unless the parents can agree matters amicably.
It is important to appreciate that in the absence of an agreement between the parents, or if any concern to the welfare of the children arises, the CAFCASS officer may recommend to the Court to make decisions in relation to the children without the parents consent.
The paramount consideration of CAFCASS is for the welfare of the child rather than the needs or emotions of the parents.
The older the child is the more the CAFCASS officer and the Court will take his/her views and wishes into account.
Please contact Stephanie Buckeridge or Raanan Berlad for further information.