Handling divorce

Handling divorce

There is only one ground for divorce and that is that the marriage has irretrievably broken down. This, however, has to be evidenced by one of five facts, either unreasonable behaviour; adultery; 2 years desertion; 2 years separation with consent; or 5 years separation.

Divorce proceedings are initiated by way of a Divorce Petition. (The Petitioner is the person who actually brings the divorce proceedings). The other party (the Respondent) has to acknowledge that he/she has received the divorce paperwork. The divorce paperwork is sent to the Respondent by the Court. Find out more.

The Court will send to us a copy of the Acknowledgment of Service form once completed and sent by the Respondent to the Court.

We can then prepare an Affidavit which is sworn to confirm on Oath that the contents of the Petition are true. An application is then placed before the District Judge for him/her to determine whether or not the Petitioner is entitled to a divorce. If so, he or she certifies the fact of entitlement to a divorce and gives a date for pronouncement of the Decree Nisi. This is the first stage of the divorce. Six weeks and one day later the Petitioner can apply for the Decree Absolute, thereby dissolving the marriage. This is not an automatic step. Three months later the other party (the Respondent) could apply for the Decree absolute if the Petitioner has not done so within that time-scale.

What to do when children are in the middle?

There is more to divorce to just the two partners, in many cases there are children involved. For the childs wellbeing, the parents need to cooperate and be civilized even if it can be emotionally challenging.

Something divorced parents will have to consider is who will have custody over the child and this is an important matter. If this cannot be solved between both parents, Emerson Family Law and their lawyers will be there to help.

What should you do?

It is possible for the Respondent to either: (i) defend the Petition on the basis that the marriage hasn’t irretrievably broken down and the fact has not been established as evidence of this; or (ii) to cross-petition ie to admit that the marriage has irretrievably broken down but to claim that he is entitled to petition against the Petitioner; or (iii) simply to allow the Petition to proceed undefended.

Decree Absolute of divorce could be granted within between 3 to 6 months, however, most parties prefer to await a resolution of their financial claim before applying for Decree Absolute, particularly as any Wills made are affected by Decree Absolute of divorce.

Why should you start writing your will

Please note that it is not possible to issue for a divorce within the first year of marriage. A Decree of Judicial Separation would, however, be available.

Alternatively, either party could apply for a Decree of Judicial Separation. This is a legal separation. Although the parties are not divorced they no longer have a duty to co-habit. The party bringing the proceedings will have to prove one of the five facts as in divorce cases, but will not have to prove that the marriage has irretrievably broken down.

Does it affect wills?

There is one Decree of Judicial Separation. Any Wills made are unaffected by a Decree of Judicial Separation. However, if you die not having made a Will and a Decree of Judicial Separation is in force and the separation is continuing, your property would pass as if your spouse had predeceased you, ie they would not benefit from your death.

The Court can make Orders as to financial matters and property as they can within divorce proceedings. However, if you subsequently decide to divorce you will need to bring a fresh Divorce Petition. Find out more.

Living together can affect your divorce or Petition for judicial separation. If you co-habit with your spouse for a period exceeding 6 months after you learnt that your spouse had committed adultery you cannot rely on that adultery committed.

Co-habitation of 6 months or under is disregarded. In relation to a behaviour Petition, co-habitation of 6 months and under is disregarded but co-habitation of more than 6 months will be taken into account in determining whether the Petitioner can reasonably be expected to live with the Respondent.

In relation to separation or desertion, when the Court considers whether the periods apart have been continuous no account is taken of the period or periods not exceeding 6 months in total during which the parties resumed living with each other, although these periods of time would not be counted as part of the period of desertion or separation.

It is possible to live separate and apart from your spouse but still be living under the same roof.

Proceedings in relation to divorce or judicial separation can be stopped at any time up until Decree Absolute of divorce or Decree of Judicial Separation.

Alternatively, both parties could enter into a Separation Agreement. The essence of a Separation Agreement is that the parties agree to live apart.

However, it can include all manner of other terms dealing with maintenance, family property or arrangements for the Children, etc. A Separation Agreement is a Contract just like any other Contract and normal contractual rules apply.

It is therefore not so easy to enforce as a divorce financial Order. It can, however, be flexible.

It should be borne in mind that a Separation Agreement cannot achieve the same degree of finality as a Court Order. Should either party seek a divorce and ask the Court to entertain future financial and property applications, then any agreement not to do this would not have any effect.

The Separation Agreement envisages divorce proceedings being brought on the basis of 2 years separation with consent, therefore it is often recited within the Agreement that either party will apply for a divorce on the basis of 2 years separation with consent and the other party will consent at that time.