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