Divorce "The Special Procedure"
It’s not special!
It applies in the vast majority of cases and is now the norm. Technically however it is still known as “The Special Procedure”. It applies in all cases where the divorce is not defended.
Proceedings are started by a “Divorce Petition”. We usually issue the Divorce in Middlesbrough. The person starting the Divorce is known as “The Petitioner” and the person receiving these papers known as “The Respondent”. This must be based on the only ground for divorce – “the irretrievable breakdown of the marriage”. BUT IT MUST be proven in one of the five following ways :-1. Adultery – The Respondent must have committed adultery and the Petitioner find it intolerable to live with them.
2. Behaviour – The behaviour must be such that the Petitioner cannot reasonably be expected to live with the Respondent.
3. Desertion – The Respondent must have deserted the Petitioner for at least 2 years.
4. Two years separation and consent – The parties must have lived apart for at least 2 years and the Respondent must consent to the divorce.
5. Five years separation – This is simply that the parties have lived apart for at least 5 years.
The decision on what basis the Divorce should proceed is crucially important and one upon which you should seek advice. There are many technical aspects to the brief summary mentioned above and it is important to discuss the decision, weigh up which is the most appropriate in your circumstances and be certain. Please ask us about this.
There are other important factors which must be considered before a Divorce Petition is prepared. These include issues of jurisdiction (whether the English Courts can deal with the Divorce at all). This is generally established by habitual residence and/or domicile. This can be incredibly complicated and again specialist advice should be sought. Please ask us if your circumstances suggest this may be an issue.
It is also important to bear in mind that it is not possible to present a Divorce Petition within the first year of marriage.
With the Divorce Petition it is necessary to file other documents with the Court and, in particular, a Statement of Arrangements for the Children. Clearly, the arrangements in place for the children are extremely important and can cause significant delay and potentially even result in the Court taking action to ensure arrangements for the children are indeed suitable. Again, do consult with us on this and we will advise you throughout the process.
The Court send all the relevant documents to the Respondent and they must complete an “Acknowledgement of Service”. This is an important document and depending on the case, it can be crucial to prove various facts.
Once the Acknowledgement of Service is provided to the Petitioner, they must complete and swear an “Affidavit in Support of the Petition”.
All of these documents will then go before a District Judge together with some additional papers and, providing the Judge is satisfied that the facts are proven, a date will be set for the pronouncement of Decree Nisi. You will see that this stage is crucial as only now is the evidence (for that is what all of the documents are) considered by the District Judge. It is therefore very important that these prove the legal basis for Divorce.
A date set for Decree Nisi at Court does not mean that you need to attend Court, it is dealt with administratively. Historically, it was necessary to attend Court and actually prove the basis for the Divorce.
6 weeks and 1 day after Decree Nisi is pronounced, application can be made for Decree Absolute. Should you apply? What about loss of certain financial and inheritance rights, pensions, etc? This is a question which must be discussed and considered carefully with your solicitor. We will talk to you about this as the procedure advances.
This is an overview of the procedure only and does not apply in every single case. There is no substitute for advice on your specific circumstances for each case is different and we will treat each case individually. Why not contact us to discuss matters further.
