General information of the proceedings
Divorce in England & Wales is currently granted on the basis of the irretrievable breakdown of marriage. The Family Law Act 1996 which has recently passed through Parliament will amend the law in quite significant ways but it will only be brought into effect in stages and dates have not yet been fixed for most of these. There are currently five so-called "grounds" which can be relied upon to witness irretrievable breakdown:-
Adultery
Unreasonable behaviour.
Desertion
Two years' separation with consent
Five years' separation without consent
Although divorces based on the last three grounds are by no means uncommon, in practice most divorces are based either on unreasonable behaviour or adultery and the reason for this would seem to be that neither involve the wait which the other grounds involve. When a marriage breaks down it is not usually too difficult to find some instances of unreasonable behaviour on either or both sides and so this is, not unnaturally, seen as a route to a quick divorce.
One very common reaction when, say, a husband receives a divorce petition based on unreasonable behaviour is something along the lines of, "Why, you've been quite as unreasonable as me and so I'm going to defend it and issue my own petition." It is important to understand that the reason for the divorce has, in the overwhelming majority of cases, no impact whatever on the other two issues which may need to be resolved - the questions of financial provision and/or any disputes affecting residence or contact with the children. These two latter issues are quite separate and dealt with completely independently of the divorce and using quite different criteria.
Once this has been explained it is normally possible to allow a divorce to proceed with minimum acrimony and neither party need ordinarily attend court. It is, however, often a tricky issue to handle at the outset and, although it is perfectly possible to have an "amicable" divorce and very many people do so each year, the way it is dealt with in the initial stages can have a major impact on what happens later. Unfortunately, there are a number of matters on a divorce petition whose meaning is not immediately obvious to a lay person and these technicalities often cause difficulties where there need not be any. Indeed, it is very often the receipt of the divorce petition and the "Acknowledgment of Service" which prompts a client to consult a solicitor for the first time about a divorce.
In point of fact it is very rarely possible to defend a divorce for two main reasons. Firstly, the very fact that one party to the marriage has presented a divorce petition is a fairly clear indicator of a serious breakdown in the relationship. Secondly, Legal Aid is very rarely available to defend a divorce mainly for the reason given above. Although divorce petitions can be contested that is extremely unusual and most solicitors would only recommend such a course if there was some clear advantage to be gained by doing so. Such cases are very rare although it is probably fair to say that the new law which is due to come into force at some point in the future may well make it easier to prevent a divorce in certain circumstances.
There are, however, other issues which very often depend upon divorce and most
people contemplating issuing a divorce petition or who have received one should
very likely take legal advice so that they fully understand the position and the
issues involved. The one which causes the greatest number of disputes is almost
certainly what is called
"ancillary relief"
- i.e. resolving the financial issues between the parties. And, of course,
most people want to know that the
costs of a divorce
and time scale are.
This latter point can be especially important if one of the parties wishes to
remarry. There is also the remote possibility that a decree of judicial
separation might be more appropriate than a divorce but one should reflect
very carefully indeed if one is ever presented with this latter option.
femtalk is for
you