Divorce

Divorce Proceedings

The divorce proceedings are the means by which the parties' marriage is dissolved.

Although the Court can resolve any issues relating to the children of the family or financial matters within the divorce neither the decree nisi nor the decree absolute will, of themselves, activate the legal procedures for dealing with these aspects of the separation or endorse any agreement with regard to finances that has been reached between the couple.

Misconception about Separation

It is a common misconception that the parties must have been separated for two years or more before divorce proceedings can be issued, unless one party has committed adultery or behaved in a highly unreasonable manner.

In fact, it is not necessary to allege behaviour that is extreme in order to obtain a decree and it is often possible for the parties to agree the particulars of behaviour in advance or for them to be pleaded in such a form as to give little or no offence to the other party.

Adultery Prior to Separation

Similarly, many people believe that they can then only rely upon adultery which occurred prior to the separation. This is not so and where a new relationship has formed it is frequently possible to agree that the petition will proceed on the basis of adultery without naming the co-respondent.

Formalising a Separation

If one or both parties take the view that the marriage has irretrievably broken down the principal advantage of formalising a separation within divorce proceedings is that the petition enables the Court to deal with the financial issues.

If an agreement has been reached an application can be made to the Court for an order in the terms agreed. The Court order provides, with one or two exceptions, a final division of the parties' assets so that, for instance, if one party has agreed to waive their claims for maintenance in return for an increased share of property, the agreement cannot be set aside at a later date.

If there is no agreement as to financial issues, so that, for instance, the matrimonial home cannot be sold, the petition provides the means by which the Court can be invited to make orders dealing with the parties' property.

Where Divorce Proceedings Are Not Available

For a minority of people divorce proceedings are not available or are not a practical possibility. In those circumstances, exactly the same remedies, with two exceptions, are available by means of a petition for a decree of judicial separation. Alternatively, if the parties are not yet ready to divorce but wish to record the financial agreement which they have reached, a 'deed of separation' may be more suitable.

In nearly every case, the divorce petition proceeds undefended and without the need for a court hearing or a detailed examination of the allegations made by either party.

If you wish to know more about the procedures involved in a petition for divorce please go to the section entitled divorce procedure. Alternatively, contact a member of the Family Law Team.

• © Furley Page LLP 2008
• | LLP
• | Terms and Conditions
• | Privacy Policy
• | Site Map
• | Accessibility