WHAT TO DO... ABOUT DIVORCE

Taking the decision to divorce your partner is never an easy one and before rushing into things it is sensible to talk to people and get advice and information. It can take a long time to "get over it" and feel yourself again, but there are many people and agencies that can offer help. This leaflet summarises the main practical matters and at the end lists some of the agencies and reading material that might help.

HOW TO GET A DIVORCE

Before starting a divorce you must have been married for at least one year. There is only one ground for divorce and that is that the marriage has irretrievably broken down. To show this, the Petitioner (the partner asking for the divorce) has to prove one or more of the following five facts:

The Respondent (the other partner) has committed adultery and you find it intolerable to live with him/her. The Respondent has behaved in such a way that you cannot reasonably be expected to live with him/her. The Respondent has deserted you for at least two years. You and the Respondent have lived apart for two years, and both agree to the divorce. You have lived apart from the Respondent for five years. Even if you can agree that you both want a divorce, if there are children and financial issues involved it is always wise to consult a solicitor.

THE PROCEDURE

If you both agree on why and how you want to divorce, then the proceedings will be undefended. The Petitioner starts the proceedings by completing the relevant form (a Petition) and sending it to any Divorce County Court.1 If there are children involved, the Petitioner will have to complete a form known as the Statement of Arrangements for Children. The Court ensures that this form and all other relevant documents are sent to the Respondent. Forms can be obtained from your local County Court1, the Citizens Advice Bureau or your solicitor. You will need your Marriage Certificate2 or a certified copy before you can start the divorce. If the Respondent says in the form which he/she returns to the Court when he/she receives the Petition (the Acknowledgement of Service) that he/she does not intend to defend the case, then the proceedings are undefended.

Providing the divorce proceedings are undefended then there should be no need for any party to attend at Court.

DO I NEED A SOLICITOR?

Whilst it is not essential to have a solicitor, it is a good idea to have the benefit of a solicitor's advice to check that there are grounds for divorce. The cheapest and easiest way to do this is to ask the CAB which local solicitors specialise in matrimonial work and offer a "fixed-fee interview". This entitles you to half an hour of legal advice for £35.00 plus VAT. Alternatively Horsham & District CAB may be able to give you an appointment at their free legal advice session on Monday evenings (15 minutes, advice only).

If the Respondent does not agree to a divorce, either because he/she does not want a divorce, or disputes anything said in the Petition, then the divorce will be defended. In this case you should consult a solicitor.

HOW MUCH WILL IT COST?

The Court fee for starting divorce is £150.00 and there is a fee of £30.00 on the application to have the Decree Nisi made absolute (ie when the divorce is finalised). You may not have to pay if you receive certain benefits. If a solicitor is acting for you other than under the Legal Help scheme, the Court fee will be included in his bill, or he may ask you for a payment on account.

HELP WITH SOLICITOR'S FEES

The Legal Help Scheme is available for legal advice for both defended and undefended proceedings. If financially eligible, this scheme enables you to three hours worth of legal advice if you are the Petitioner and two hours worth if you are the Respondent. Legal Help assistance exempts you from the Court fees so it is sometimes worth having.

If the divorce is going to be defended, or there are issues about the children or finances then you need to ask your solicitor about Legal Help. The Legal Services Commission, who administer the scheme on behalf of the Government, will check your financial circumstances to see that you are eligible and will also check on the merits of your case. If at the end of your case you recover or preserve money or property then the costs of the case will have to be returned to the Legal Services Commission. This is known as the "Statutory Charge". This can come as a shock, so ask your solicitor about it beforehand.

HOW LONG WILL IT TAKE?

Whether there are children or not it is still possible to obtain a divorce in approximately four months if there is agreement all round.

However, if there are disputed proceedings about children or about the finances, this may take some time to be sorted out, even though the divorce itself has been finalised. Although proceedings about finances may in the past have, on occasions, taken a number of years to complete, there is likely to be less delay once the new financial procedure is introduced at all Courts on 5th June 2000.

DO I HAVE TO GO TO COURT?

If the divorce is undefended then in the sense of standing up in a Court room in front of a Judge - no. You will only attend the Court offices to complete the forms. If the divorce is defended or there are any hearings about children or the finances, then you will have to go to Court to see the Judge. However, the case will be dealt with in private and less formally than other types of proceedings.

ARRANGEMENTS FOR THE CHILDREN

At the beginning of the proceedings the Petitioner must file a statement at Court known as a Statement of Arrangements for Children. This form will set out details of where the children live, who will look after them, where they go to school, how often and for how long the Respondent sees the children. The Judge will check this form when he decides whether the Petitioner is entitled to a divorce and if there is something that worries him he will arrange a hearing having told everybody what it is he wants to discuss.

If the Petitioner and Respondent cannot agree about the arrangements for the children, for example with whom they shall live and how often the other partner shall have contact with them, it is open to one or other to make a formal application to the Court. The Court will look at what is in the best interest of the children only. The Court may ask a Court Welfare Officer to report, setting out the background to the disagreement and making a recommendation to the Court. The children may well be consulted when this report is being prepared.

It is always best if arrangements for children can be worked out by agreement rather than having to go to Court and there are services available to help separating and divorcing parents reach agreements about the children. See later. Older children may be consulted by the District Judge over these arrangements. If there is disagreement about who should have the care of the children or if the District Judge is unhappy about the arrangements suggested by the two partners, he may order a Court Welfare Officer to produce an independent report. Again, the children might be consulted in the preparation of this report.

MAINTENANCE FOR CHILDREN

On 5th April 1993 the Child Support Act came into force.

New cases, that is where there is no current maintenance payment under a court order nor written agreement, will be taken on by the Child Support Agency straightaway, when an application is made to the Agency.

Parents with care who claim Income Support and Income-based Job Seekers Allowance, or who are the current partner of someone who gets one of these benefits, will usually be required to authorise the Secretary of State to obtain maintenance on their behalf.

Child Support maintenance is assessed by means of a formula, using information on the personal circumstances, income and housing of both the parent with care and the absent parent.

The courts will continue to deal with related issues such as maintenance payable to a former wife/husband direct, maintenance for step-children, and existing court orders.

The Agency is not at present able to take action on existing court orders relating to maintenance for children.

For a divorce that involves children and/or financial issues, it is essential to consult a solicitor, whether you are the Petitioner or the Respondent, and regardless of whether the divorce itself is agreed.

CAPITAL AND PROPERTY

The Court may be asked, if agreement cannot be reached, to make decisions about what should happen to the matrimonial home, any savings there might be, life policies, share holdings, pension arrangements etc etc. The Court has very wide powers and may for example Order a house to be sold or transferred from one partner to another on terms. The Court has the power to order payments of lump sums and will take into account all of the relevant factors when reaching its decisions.

PROBLEMS DURING THE DIVORCE

1. Where to live Staying together under the same roof can be awkward, or impossible. Sometimes one or other partner leaves voluntarily. Often people do not leave because they are afraid they might lose their rights either as a tenant or owner-occupier. Seek advice before you leave the home if this is the case. It is possible to obtain a divorce while both partners are still living under the same roof, providing they are living separately within the same house, but it demands considerable tolerance of those involved. If one partner is violent to another then it would be possible to apply to the Court for an injunction ordering the violent partner to move out during the divorce.

2. No Money It is possible to get an Interim Maintenance Order whilst the divorce is being sorted out. Arrangements will have to be made about payment of bills including the mortgage on the house whilst everything is being dealt with. If these bills cannot be paid try to negotiate staggered payments. Some debts may be the responsibility of your partner or both of you. It might be difficult to extract any money from your partner, but it might be possible for outstanding amounts to be included in the subsequent Maintenance Order or Lump Sum Order. Claim all benefits to which you are entitled.

3. Getting help Free and confidential help is available from the CAB without appointment. The CAB will also be able to let you have a list of solicitors versed in matrimonial law and tell you about other local organisations:

RELATE - Trained counselling for those who want to divorce as well as those who don't. Details from CAB.

SUSSEX FAMILY MEDIATION SERVICE:
Garton House,
22 Stanford Avenue,
Brighton,
East Sussex BN1 6DD
Tel: 01273 550563

A service to help separating and divorcing parents reach agreements about their children. There are local trained solicitor mediators and a list of names can be obtained from the Solicitors Family Law Association or from the Sussex Family Mediation Service.

With kind assistance from COOLE & HADDOCK, Solicitors, 14 Carfax, Horsham

February 2001