Guides & Advice. Guide to Getting Divorced

Transcription

1 Guides & Advice Guide to Getting Divorced

2 Our Family Team A relationship breakdown or other issue within your family is rarely straightforward and can be emotionally and financially challenging. In these circumstances you will want to know that your lawyer is expert, on-hand and has your best interests at heart. The size of our Family law team means we can ensure that you are supported by the lawyer most appropriate to your needs, in terms of their experience and expertise, helping you to manage costs carefully. We regularly represent London-based clients and we instruct the same experts and barristers and issue proceedings in the same courts as the larger London firms. You will therefore benefit from a cost-effective alternative to City-based firms, without compromising on the quality of legal advice and service provided. Crucially, we also understand the need to find the right approach for you. As well as advising on litigation, we can offer two alternative methods of resolving your dispute: mediation and collaborative law. Our team is a member of Resolution, a body of specialist lawyers committed to a constructive approach to family law. Several team members are also trained in collaborative law, a form of lawyer-led mediation which aims to resolve family disputes while limiting confrontation and avoiding the need to attend Court. We are widely recognised as a leading Family law firm in the south east and our team is consistently top ranked by The Legal 500 and Chambers UK directories. Guide to Getting Divorced Blandy & Blandy is a standout firm for family law in the Thames Valley. The Legal 500 Excellence Integrity Approachability

3 Divorce Obtaining a divorce is usually quite straightforward, particularly if parties agree that the marriage is over. Any difficulties that arise tend to relate more to resolving the practical issues such as how to separate, where to live, arrangements for any children and financial matters. Since you will be concentrating on these related issues the process of actually obtaining the divorce can seem complicated. The purpose of this guide is to outline the broad framework of the divorce process, to highlight key points and to set out a realistic timetable. Who can start divorce proceedings? Anyone who has been married for over a year can start divorce proceedings, provided he or she can satisfy one of the following criteria: Both spouses are habitually resident in England or Wales. Both spouses were last jointly habitually resident in England or Wales and one of them still resides here. The spouse not starting the proceedings is still habitually resident in England or Wales. The spouse starting the proceedings is habitually resident in England and Wales and has been for the past 12 months. The spouse starting the proceedings is domiciled in England or Wales and has been residing here for at least 6 months. Both parties are domiciled here. It does not matter where the marriage took place.. On what grounds can a divorce petition be started? The only ground for divorce is that the marriage has irretrievably broken down. In order to prove this the person seeking the divorce, called the Petitioner, needs to establish one of the following five facts laid down by law:

4 The other spouse (called the Respondent) has committed adultery and the Petitioner finds it intolerable to continue living with him or her. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him or her. The Respondent has deserted the Petitioner for a continuous period of two years or more (a petition on this basis is exceedingly rare). The parties have been living separately for two years or more and the Respondent consents to the divorce. Both parties have been living separately for five years or more, whether or not the Respondent consents to the divorce. What happens next? The document which starts the proceedings, which is called the petition, must be prepared. It is recommended practice to try to agree the content of the petition with the Respondent, but certainly to give him or her an opportunity to see it before the proceedings are commenced. This can speed up the process and make the proceedings less acrimonious. Every petition follows the same form. It contains basic information about names, addresses, ages of any children and a statement that the marriage has irretrievably broken down. It also states the fact which is being relied on with supporting information. The petition also has a section (known as the prayer ) which includes the request for the divorce to be granted and for orders for financial provision and any claim for costs in relation to the divorce. A request for the full range of financial orders is quite standard and does not necessarily mean that such orders will be pursued. It is sensible to try and agree how the costs will be paid/shared before the proceedings are commenced if possible. What about the children? The law encourages couples to try and agree arrangements for any children in the event of a divorce. The court will not become involved regarding the arrangements for any children unless or until either parent makes a separate application under the Children Act The names and dates of birth of the children can be included in the Petition, but there is no obligation to include this information. Excellence Integrity Approachability

5 Timetable The introduction of divorce centres is very new. At this stage it is not possible to say what timescales will be achieved, but the following is a guide: Within a few days of sending the petition to the court the Respondent will be sent a copy of it. Within seven working days of receiving the petition, the Respondent should file at court a form called an Acknowledgement of Service. This form asks the Respondent whether he or she intends to defend the petition and whether any claim for costs is disputed. If the Respondent intends to defend the petition (and whether or not an Acknowledgement has been filed) he or she must within 28 days of its receipt (longer if the documents have to be sent to an address abroad) file a defence called an Answer. This is a strict deadline. The petition then becomes defended and the procedure outlined below does not apply. Defended divorce proceedings resulting in a fully contested hearing are very rare. However, a delay in finalising the divorce is inevitable. Shortly after receiving the Acknowledgement of Service from the Respondent, the court sends a copy of it to the Petitioner s solicitor. If the Respondent does not return an Acknowledgement of Service to the court the Petitioner will have to obtain proof that the Respondent has received the petition before he or she can take the next step. This may involve arranging for someone to deliver the petition to the Respondent personally or, exceptionally, obtaining a Court Order that proof does not need to be given that the Respondent has received the petition. This is called dispensing with service. If the Respondent is not defending the petition the Petitioner can apply for the Decree Nisi to be pronounced. The Petitioner s solicitor prepares a short Statement for the Petitioner to sign confirming that the contents of the petition are true. The Statement also states whether any circumstances have changed since the filing of the petition. The Petitioner will sign a statement of truth and the Statement will then be sent to the court with a request for a date for the first decree of divorce ( Decree Nisi ) to be pronounced. When the Court receives the application for a date for pronouncement of the Decree Nisi and the Statement, a Court Official looks through the papers and, if satisfied that the Petitioner has proved the content of the Petition, gives a Certificate for the Decree Nisi to be pronounced. Both the Petitioner and the Respondent (through their solicitors) are then advised of the date fixed for Decree Nisi. The date is likely to be a few weeks after the application is lodged. There is no requirement to attend court, unless there is a dispute about costs, in which case the decree nisi hearing can be transferred to a more local court.

6 Six weeks and one day after the date of Decree Nisi the Petitioner may apply for the final decree ( Decree Absolute ) by sending the appropriate form to the court. There can, however, be advantages in delaying this application until financial matters have been resolved. If an application is made, the decree will be granted and can be available as quickly as the same day. The Decree Absolute terminates the marriage. If the Petitioner does not apply for the Decree Absolute the Respondent may apply for it three months after the Petition could first have applied. A fee is payable for this. Generally an undefended divorce takes between four and six months. Are financial issues dealt with before the divorce is finalised? It is not necessary for financial issues to have been resolved by the time the divorce is final. Frequently negotiations will still be in the early stages if finances are complicated. However, it is not uncommon for the final stage of the divorce, the decree absolute, to be delayed until the financial issues have been resolved. Urgent issues, such as temporary maintenance arrangements, can be addressed by the court once the proceedings have started, whether or not a decree has been obtained. Are the proceedings public? Court proceedings in family proceedings are usually private. Accredited members of the press are allowed to attend some court hearings, but are restricted on what they can publish. They are able to publish the fact that a divorce has been pronounced and the basis for the divorce, but are not able to publish details of the alleged adultery or unreasonable behaviour. This guide is provided free of charge by Blandy & Blandy LLP for information purposes only. This information is not legal advice or to be applied to any specific situation. The Firm assumes no responsibility for how this information is interpreted or used. Excellence Integrity Approachability

7 Our Family Law Team Andrew Don, Partner and Head of Family T: E: Andrew Don Head of the Family team at Blandy & Blandy. He specialises in complex matrimonial cases and is top-ranked in Chambers UK and The Legal 500. Andrew has also been recognised in the Citywealth Leaders List as one of the leading lawyers in the UK, with capacity and experience working with high net worth clients. He is a trained family arbitrator, collaborative lawyer and mediator. He has been a Deputy District Judge since 2001 and has a Section 8 Private Children ticket. Brenda Long, Partner T: E: brenda.long@blandy.co.uk Brenda Long has over 20 years experience in family law, particularly high value divorces, financial remedies, pre-nuptial agreements, separation agreements and disputes concerning children. She has particular expertise in cohabitation cases including drafting cohabitation agreements and advising on the complex issues when cohabitees are separating. Brenda is a member of Resolution and The Law Society s Family Panel, a qualified Family Mediator and a trained Collaborative Lawyer. She is top ranked in The Legal 500 and Chambers UK and has featured in the Citywealth Leaders List. Claire Dyer, Partner T: E: claire.dyer@blandy.co.uk After training in London, Claire joined Blandy & Blandy in She is experienced in all aspects of divorce and separation, financial remedies and disputes in relation to children. She advises both married and unmarried individuals and has worked on complex cases involving Trusts and international elements. Excellence Integrity Approachability

8 Jessica Reid, Associate Solicitor T: E: Jessica Reid specialises in family law, with experience in complex financial remedy, divorce and private children law matters. She works alongside Andrew Don, on more complex and high value cases, often involving Trusts, non-disclosure and international elements. Siobhan Baillie, Associate Solicitor T: E: Siobhan Baillie joined Blandy & Blandy in She is experienced in dealing with all aspects of family law, including new relationships, divorce, cohabitation disputes, financial matters arising from the breakdowns of relationships and disputes regarding children. Rhiannon Jones, Solicitor T: E: Rhiannon joined Blandy & Blandy in 2015 as a solicitor specialising in family law, including divorce, financial relief and children issues. She works alongside Brenda Long and Siobhan Baillie. Alice Cummins, Solicitor T: E: alice.cummins@blandy.co.uk Alice ijoined Blandy & Blandy in 2015 as a solicitor specialising in family law, including divorce, financial relief and private law children. She works alongside Andrew Don and Jessica Reid. Zoe Rose, Solicitor T: E: zoe.mccomb@blandy.co.uk Zoe Rose joined the firm in She advises clients on divorce, financial relief and children law, including enforcement of orders. Emma Hiller, Legal Assistant T: E: emma.hiller@blandy.co.uk Emma is an Associate member of the Institute of Legal Executives. She has worked for Blandy & Blandy for over 17 years.

9 About Blandy & Blandy LLP Blandy & Blandy is a regional firm of solicitors, based in Reading and London. The Thames Valley has been our home since 1733 and we have the heritage and reputation that comes with this longevity. We enjoy working closely with our clients and are committed to achieving success with them. For nearly 300 years we have advised generations of clients on all aspects of their personal, family and business lives. Commercially, we provide a full range of legal services to both public and private sector organisations, ranging from national and multinational companies, through to banks and lenders, SMEs and owner-managed businesses, charities and educational institutions, professional practices, landowners and developers and venue and event operators. Our partners and many of our associates are acknowledged as experts by the two major legal directories, Chambers UK and The Legal 500, and we are top ranked as a firm by both. We have also held the Law Society s Lexcel quality mark since Of the 11,000 legal practices in England and Wales fewer than 10% have achieved this gold standard. We are a people business. We place our clients best interests at the heart of all that we do, while ensuring, through our partner led approach, that we embody our values of excellence, integrity and approachability. Feedback from both our clients and peers confirms this we know that actions speak louder than words. We seek to balance our heritage with a modern and progressive approach, in terms of the services we offer and the way in which they are delivered. This, underpinned by our independence, means that our clients continue to trust and recommend us year after year. Contact us If you would like to speak to us about our legal services or for further information, please contact Andrew Don or Brenda Long: T: E: family@blandy.co.uk W:

10 Blandy & Blandy LLP is authorised and regulated by the Solicitors Regulation Authority and authorised and regulated by the Financial Service Conduct Authority. It is incorporated as a limited liability partnership under number OC and its registered office is at One Friar Street Reading Berkshire RG1 1DA. A list of Members may be inspected at our Registered Office. Partner denotes a Member or a senior Employee of Blandy & Blandy LLP.