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   Divorce proceedings
  Divorce Proceedings   "A breakdown in the marriage
may not have to lead to divorce
"

A divorce could have a dramatic effect
on the spouses' relationship with their children as well as their personal finances and pensions. An alternative
to divorce is judicial separation and in certain circumstances nullity may be possible. A divorce is separate from ancillary relief to decide the finances.
  Introduction   Judicial separation   Nullity
  Divorce   Arrangements for children   Future procedure

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Introduction
Where a couple agrees that the marriage is over, the divorce procedure is a straightforward process. It is often the arrangements for children and assets on divorce where the parties will apply for a court order to resolve their disputes. Marriage for the whole of the UK has been declining over the last decade according to the Office of National Statistics (ONS) from 349,700 marriages in 1991 to 291,800 marriages in 2002. Over this same period the divorce statistics show the rate has remained relatively steady with 173,500 divorces in 1991 reducing to 156,800 divorces in 2001 and 160,700 in 2002.

A breakdown in a marriage does not necessarily have to lead to divorce yet this route could have a dramatic effect on the spouses relationship with their children as well as their personal finances. An alternative to divorce is judicial separation and this would slow down the process and allow mediation to reduce the conflict. In certain situations it may be possible to apply for nullity of a marriage.

There are three parts of the divorce process starting with a legal procedure to end the marriage, secondly arrangements for any children of the marriage and thirdly ancillary relief proceedings that will decide the financial matters between the couple and as the step-by-step guide shows is a separate process to the divorce proceedings. The largest asset on divorce is usually the property and different orders can be applied to the matrimonial home by the court depending on the circumstances of the parties.


Divorce [step-by-step guide]
During divorce proceedings there are two decrees that the court must grant. Initially one of the parties known as the petitioner must apply to the court for a decree nisi, however before the divorce can be made final and the marriage ends the court must grant the decree absolute. In order to apply for a decree nisi the petitioner must have been married for over one year although since 1 March 2001 to proceed in England and Wales the individual has to established the criteria of jurisdiction. This involves showing that both parties or at least one spouse has habitually resident or domiciled in England and Wales of which there are a number of combinations that are acceptable for jurisdiction.

There is also a requirement for divorce to show that the marriage has irretrievably broken down, and to do this the person must establish one of five facts as proof:

Adultery of the other spouse;
   
Unreasonable behaviour of the other spouse;
   
Desertion by the other spouse after two years;
   
Separation with consent after two years;
   
Separation without consent after five years.

In about 70% of cases the divorce petitioner will cite adultery or unreasonable behaviour of the person, known as the respondent, in the petition.

If the divorce is by way of agreement between the parties, then unreasonable behaviour would require only a brief outline of the behaviour so help to avoid further conflict. At the same time as the divorce petition a statement of arrangement would be filed at the court showing the proposed arrangements for any dependent children that are under 16 years of age or in full time education.

If the divorce petition includes false allegations it would be important for these to be challenged by the respondent as they could influence future contact with children and result in costs being awarded against the respondent. In divorce proceedings there are two decrees that must be applied for to end the marriage. Once the respondent has acknowledged the divorce petition the petitioner can apply for the decree nisi. When the court receives the application, a judge will review the papers to ensure they are in order including arrangements for any children, before giving the decree nisi can be granted.

The petitioner will now have to wait 6 weeks and one day before applying for the final decree, the decree absolute. Once this has been granted the divorce is final and the marriage ends. At this point the parties are free to marry again. In terms of ancillary relief, although occasionally the couple can agree the allocation of maintenance and division of the matrimonial assets, completed before the decree absolute is granted, often a resolution will not be achieved until after the divorce is finalised and the step-by-step guide shows how this separate legal process works.


Judicial separation
In judicial separation proceedings the partner will obtain from the court a decree of judicial separation and this means a legal separation of the partners although they will still be married but not have to live together. This is different from divorce where the decree nisi followed by the decree absolute is required before the proceedings are final.

A decree of judicial separation will only be granted, as with a divorce petition, on the grounds that the marriage has irretrievably broken down. The partner must prove:

Adultery of the other partner;
   
Unreasonable behaviour of the other partner;
   
Desertion by the other partner after two years;
   
Separation with consent after two years;
   
Separation without consent after five years.

As with nullity, judicial separation can be granted within 12 months of the marriage. However, before the court grants a decree of judicial separation it will have to establish that the arrangements the partners have made for the children, if any, are acceptable to the court.

Judicial separation will allow the partners to apply for a court order to settle disputes of children, matrimonial property or financial matters during ancillary relief proceedings.

For ancillary relief proceedings an earmarking order against the members pension rights within a pension arrangement of the other partner, however, a pension sharing order will only apply to divorce or nullity.


Nullity
A marriage can be annulled if for any reason it is not valid and this can be done by the presentation of a nullity petition. Once the court has issued the partner a decree of nullity, there are no further requirements to end the marriage as with divorce which requires the decree nisi followed by the decree absolute. It would then be possible to apply for a court order settling disputes over children, matrimonial assets or financial matters during ancillary relief proceedings including the granting of a pension sharing order or earmarking order against the members pension rights from a pension arrangement of a partner.

A marriage can be annulled where:

It has not been consummated, that is where partners have not had sex while being married;
   
The partners are inter-married, meaning a marriage of close relatives;
   
At the time of the marriage one of the partners was already married to someone else;
   
One of the partners was under the age of 16 at the time of the marriage;
   
A partner at the time of the marriage had a venereal disease and the other partner was not aware of this at the time;
   
The partner at the time of marriage was pregnant with another persons child which the other partner was not aware of at that time.

As with judicial separation a presentation for nullity can be granted within 12 months of the marriage but must be presented within a reasonable time.


Arrangements for children
At the time of the petition for divorce, the petitioner and respondent will have to agree as to the arrangements for the children. This should be shown in the statement of arrangements for any children under 16 years of age or in full time employment, although if agreement is not reached it will not prevent the divorce from proceeding to the next stage.

The parties are obligated to maintain their children until they cease to be dependent and this is a responsibility that cannot be brought to an end. In term of the financial matters the Child Support Agency can be expected to try to obtain maintenance from the former spouse, usually the husband, for the children even if the parent responsible for the children declines to claim for maintenance. It is worth noting that children themselves have the right to apply for maintenance.

In most circumstances the court would have regard to achieving a clean break for a couple on divorce. However, this may not be desired where a wife with responsibility for the children has no source of income yet the husband is a high earner. In this case the court would seek a continued link through an order for continuing maintenance.


Future procedure
The current law for couples in England and Wales is based on the principle of fault based divorce, meaning that the petitioner is married for at least one year and is required to prove one fact from five that the marriage has irretrievably broken down. The Family Law Act 1996 (FLA 96) would bring significant changes by introducing, in part II, no fault divorce.

This means that no grounds will have to be shown as to why the marriage has irretrievably broken down by the petitioner when submitting a divorce petition. The Act would promote mediation, which is designed to reduce acrimony between the parties. Information meetings would allow for this mediation and a statement of marital breakdown would be produced 3 months after and once submitted to the court, this would mark the start of divorce proceedings.

A period of reflection would then start and last 9 months after which time both parties could then apply for divorce or judicial separation. In December 2000 the government announced that the FLA 96 would, in part, be postponed probably for several years.

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