These days the procedure
in undefended divorce cases is quite straightforward.
It
is rare for anyone to have to appear in court,
and in most cases everything is dealt with "on paper".
There is one basic ground for divorce, ie
that the marriage has irretrievably broken down.
However, this needs to be proved by one of five factors.
- That the other party
has committed adultery.
- That the other party
has behaved in such a way that the petitioning party
cannot reasonably be expected to live with them, ie
unreasonable
behaviour.
- That there has been
desertion for
2 years.
- That the parties
have been separated
for a period of
2 years and the other party consents.
- The parties have
been separated
for 5 years.
Presuming that
one of these factors exist divorce proceedings are started
by a petition
being prepared
and filed at court. This is then served upon the other
party by the court, through the post.The
other party then has 14 days to return a form called an
Acknowledgment of Service
to the court with the petition. If the other party doesn't
return the form then, in certain circumstances, the court
can try and get round the problem. If it can be shown
that the other party has had the papers the court can
make an order that service of the petition is deemed to
have taken place. One can use the Court Bailiff, or an
Enquiry Agent to serve the petition .
When the Acknowledgment of Service is received, or, in the alternative, the court has deemed service to have taken place, or there is proof of service from the court Bailiff or Enquiry Agent, the petitioning party then swears an Affidavit which confirms the truth of the contents of the petition. It confirms that the petitioner find it intolerable to live with the other party and is accompanied by a request that the court consider all of the circumstances.
If it is satisfied with the papers the court sets a date for pronunciation of the Decree Nisi.
Both parties receive notification of the date from the court. The papers state that unless someone objects to one of the orders that are to be made, no one needs to attend Court. In certain circumstances where the other party (the respondent) has objected to paying the costs of the divorce, the court may order the respondent to appear before the Judge to argue why he/she should not pay the costs.
Once 6 weeks and 1 day have passed from the date of the Decree Nisi, the petitioning party may apply to the court for the Decree Absolute by completing a simple form and paying the appropriate fee. Sometimes we advise our client to delay applying immediately for the Decree Absolute, where for example financial issues have not been resolved. If one of the parties to the divorce applies for the Decree Absolute before finances are sorted out and the other party dies there may be a loss of financial benefit.
If the petitioning party does not apply for the Decree Absolute
then 4½ months after the Decree Nisi the other party
may apply to the court for a Decree Absolute. The court however
does not grant the application without first hearing argument
from any party who attends court. .This type of hearing however
is rare. and in the vast majority of the cases it is left for
the petitioner to apply for the Decree Absolute when they are
ready. If, for any reason, the petitioning party has not applied
within 12 months then the court usually requires a simple Affidavit
to be filed with the application for the Decree Absolute explaining
the delay.
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