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   Divorce procedure FAQs
  Who can start divorce proceedings?
  What are the grounds for divorce?
  How is judicial separation different from divorce?
  What are the grounds for nullity?
  What is the next stage for a marriage that has irretrievably broken down?
  What will happen to the children?
  Should an existing will be changed?
  When can the parties marry again?
  Is the law on divorce procedures changing?

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Who can start divorce proceedings?
In England and Wales anyone that has been married for more than one year can start divorce proceedings. From 1 March 2001 they must also satisfy one of the criteria on jurisdiction that has been standardised throughout the European Community. This refers to the parties place of residence and where they are domiciled. If the criteria is satisfied then in England the English law will apply on divorce irrespective of where the couple were married.


What are the grounds for divorce?
The grounds for divorce is that the marriage has irretrievably broken down and that the petitioner must prove one of five facts as follows:

That the spouse has committed adultery and the petitioner cannot be expected to continue living together;
   
The spouse has exhibited unreasonable behaviour and the petitioner cannot be expected to continue living together;
   
The spouse has deserted the petitioner for a period of 2 years;
   
The petitioner and the spouse have been living separately for more than 2 years and both parties agree to a divorce;
   
The petitioner and the spouse have been living separately for more than 5 years whether or not the spouse agrees to a divorce.


How is judicial separation different from divorce?
In judicial separation the parties will remain married but will not have to live together. The petitioner will only have to apply for one decree in judicial separation whereas with divorce they must apply for the decree nisi and then a decree absolute.

For judicial separation there is no need to have been married for 12 months as with divorce, although as with divorce the petitioner must still prove one of the five factors. The step-by-step guide showing the ancillary relief process to settle the financial matters, a pension sharing order can be applied in cases of divorce and nullity of marriage only. This means that for judicial separation only offsetting or earmarking will be available to the parties.


What are the grounds for nullity?
If the marriage is not valid the petitioner can have the marriage annulled so long as it is within a reasonable time. There is no requirement to have been married for more than 12 months to apply for a decree of nullity. The petitioner could annul the marriage for some of the following reasons:

The marriage has not been consummated, meaning that the parties have not had sex with each other since being married;
   
At the time of the marriage the petitioner's partner was married to someone else;
   
One of the parties to the marriage was under 16 years of age at the time of the marriage;
   
The parties to the marriage are close relatives;
   
The petitioner's partner was aware at the time of the marriage they had a venereal disease but did not inform the petitioner of this fact;


What is the next stage for a marriage that has irretrievably broken down?
The spouse that makes the application for a divorce petition is known as the petitioner and the other spouse as the respondent. In the first place it would be an advantage for the petitioner, this being the wife in 79.0% of cases, to obtain an agreement for the divorce from the respondent to reduce conflict during the divorce and the ancillary relief proceedings.

An agreement would imply an undefended divorce by the respondent and mean the petitioner can base the divorce on unreasonable behaviour requiring only a brief outline of such behaviour, without necessarily prejudicing the petitioner. Without agreement the petitioner's allegations could be challenged and although any defense of a divorce will ultimately fail, a challenge would greatly increase conflict and animosity during the proceedings.


What will happen to the children?
At the time of submission of the petition for divorce, nullity of marriage or judicial separation to the court, the petitioner will also have to include a statement of arrangements form with reference to any children. The form should be sent to the partner to be agreed prior to filing with the court.

This form will show whether the parties have made satisfactory arrangements for the children and if the judge is not satisfied he can arrange a children's appointment where the party that cares for the children will have to be present at court to explain to the judge the arrangements that have been made for the children.


Should an existing will be changed?
An existing will involving both parties should be changed as a result of divorce proceedings, even before the court grants the decree absolute. All existing provisions under trust where the former spouse is a beneficiary or acting as a trustee will continue after the divorce and be put into force in the event of death.

This could have implications for the payment of life assurance and may not reflect the wishes of the spouse on death if the will is not changed. It may be necessary to change the provisions of the will in the short term before divorce and ancillary relief proceedings are finalised. A party should take legal advice when deciding to change their will during divorce proceedings.


When can the parties marry again?
For divorce proceedings there are two decrees and the first stage is the granting of the decree nisi. After this the petitioner must wait at least six weeks and one day before applying for the decree absolute. When this has been granted the marriage will come to an end and both parties are free to marry again.


Is the law on divorce procedures changing?
The current procedures require the petitioner on divorce to prove that one fact from five has resulted in the marriage irretrievably breaking down. The Family Law Act 1996 (FLA 96) will introduce no fault divorce so that no grounds will have to be shown as to why the marriage has irretrievably breaking down. Although some of the FLA 96 has been implemented, the government announced in December 2000 that the significant changes this law would introduce will be delayed for several years.

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