Taking the decision to end a marriage and get a divorce is not easy. You may be dealing with a range of emotions, all while trying to grasp how divorce claims work. Seeking divorce advice is the first step. Before you head to court, it can be helpful to understand just how the process works and what to expect from the proceedings.
Divorce claims at court consist of two parts, which usually run in parallel – the actual divorce process and the financial remedy proceedings.
Applying for divorce
To start the process with a divorce solicitor, you need to file an application (petition) to the court that your marriage has ‘irretrievably broken down’. You’ll need evidence to show that the marriage has broken down. Such evidence can include:
- Separated for 2 years with consent
- Separated for 5 years
Once the evidence is submitted at court with the relevant fee and the court is satisfied with the reasons for the divorce, the petition will be issued. The issued petition is then sent to the other party who will need to file an ‘Acknowledgement of Service’.
This is a document that sets out whether they agree to the facts stated in the petition and if the intend to defend/oppose the claims. If the petition is undefended, you will be entitled to apply for decree nisi. Decree nisi is an order of the court confirming that the necessary requirements to divorce have been met. This is the first stage of the divorce claims process and not the end.
No fault divorce
There are changes in the law which are proposed to come in on 6 April 2022 will remove the element of ‘blame’ in divorce claims that come about from relying on factors such as adultery and behaviour. The no fault divorce system aims to reduce the acrimony surrounding divorce.
Financial Remedy Proceedings
The other part of a divorce claim is the financial remedy proceedings. Here, you and your spouse will need to agree how to divide up your assets at the end of your marriage.
If you’re both unable to agree terms, the division of assets will be decided in court. This can be indicated on the divorce petition by stating that you do wish to apply for financial orders. The financial orders can include assets you wish to keep, or for your children. Even if you indicated in the divorce petition that you wish to have a financial order, the courts will not take any action until a separate application is made.
Such financial matters can be agreed to out of court, by using divorce solicitor processes such as mediation or arbitration. Alternative dispute resolution methods such as these have recently become popular given the backlogs the court system has faced as a result of Covid-19. Where an agreement cannot be made, the process will continue in court.
The court process begins by issuing an application known as Form A. This application notifies the other party of an intention to proceed with an application for a financial order. As part of the application, you will need to inform the court whether you have attended mediation prior to making the application and if not, give an explanation as to why. In some scenarios mediation would not be suitable.
Once you have submitted your Form A to the court, you will be provided with your first hearing date and instructions (knows as ‘directions’) to comply with before the hearing. The aim of these directions is for each party to provide full and frank disclosure of their financial information and get the matter ready for court. This allows the parties to see what there is in the marital pot that is available for division.
Within financial remedy proceedings you will generally only have three hearings:
- First Appointment (FDA).
- Financial Dispute Resolution Appointment (FDR).
- Final Hearing.
The first appointment keeps the process on track should relevant information remain outstanding. The court has several processes to ensure claims keep progressing, regardless of whether the relevant information is withheld or missing.
At the FDR, a Judge will give an indication of the type of order that could be made at a final hearing. The Judge will outline what both parties can expect and when they should expect it.
The Judge involved will then consider the positions of both parties, taking several factors into account such as employment, access to savings and assets, any health issues and more.
Although by issuing court proceedings you are in the court realm, negotiations with the other party can continue to take place outside of court and an agreement can be reached at any point – if anything, the courts would rather you come to an agreement than have to make the order for you.
Final Order and Decree Absolute
If you go all the way to a final hearing a Judge will make what is called a Final Order. If an agreement is reached through negotiations between the parties, the order drawn up is called a Consent Order. In both scenarios, once you have reached the conclusion of your financial matters you can apply for decree absolute.
If you are the petitioner, you can usually apply for decree absolute six weeks and a day after the date of decree nisi. The Respondent can apply for decree absolute three months after this date.
Generally, parties wait until the conclusion of financial matters to apply for decree absolute. The decree absolute is the document which confirms the end of the divorce process and dissolves the marriage.