A Guide to Getting a Divorce

A Guide to Getting a Divorce


The prospect of divorce action can be daunting, but the process can be eased with the right professional advice. Waters & Co., is here to guide you, steer you clear of the pitfalls and offer sensitive but practical advice, whether you are petitioner (starting the proceedings) or respondent (receiving the proceedings).


Obtaining a Divorce
You will only be granted a divorce if you can demonstrate that your marriage has suffered an “irretrievable breakdown”. To do this you must show that your marriage is beyond repair because one of the following facts applies:
  1. your spouse has committed adultery; or
  2. your spouse’s behaviour is such that you cannot reasonably be expected to live with him or her; or
  3. your spouse left you at least two years ago without good reason and refuses to return; or
  4. you have been separated from your spouse for two years and he or she agrees to a divorce; or
  5. you have been separated from your spouse for five years or more (when no consent is needed)

The Divorce Process

The legal formality of getting a divorce is relatively straightforward. What is generally much less straightforward is sorting out the practical issues associated with divorce, such as where each person will live, who gets what, who will pay what during the process and arrangements for any children. Before agreeing matters with your spouse, it is wise to take advice from a solicitor about your rights and the options available to you.


Initial Letter
The person making the application for divorce is known as “the petitioner” and the person they are divorcing is “the respondent”. If you are applying for the divorce, we will usually start the process by writing a letter to your spouse to tell them that you are planning to start divorce action. This letter will also recommend that your spouse gets independent legal advice if they have not done so already.


Divorce Petition
We will prepare the petition and send it to the court. The petition sets out (amongst other things) whether you will be asking your spouse to pay the costs of the divorce and/or provide financial support for you and/or the children. The court will send a copy of the petition to the spouse for his/her solicitor inviting a reply within seven days.

Once your spouse or his/her solicitor has replied to the petition, you will need to confirm your intention to go ahead with the divorce application by making a sworn statement or “affidavit” confirming the truth of the petition. Your application is then lodged with the court for consideration by a District Judge. If your spouse does not reply or cannot be found, we will tell you the methods for overcoming this.


Statement of Arrangements for Children
If you have children under the age of 16 (or between 16 and 18 in full-time education), you will need to fill in a form called a “statement of arrangements for children”. This asks for details about your children such as:
  • who they will live with
  • what your plans for them are, including any arrangements for visits by, or contact with, the other parent
When the court comes to consider the divorce papers, it will take this information into account to make sure that the children are properly provided for. If not satisfied, the divorce process will be put on hold.


Decree Nisi
Once the court is satisfied as to the arrangements for children and that you are entitled to a divorce, it sets a date and time for the judge to pronounce the “decree nisi”. You are not actually divorced at this stage.

If at this point you and your spouse have not agreed who should pay the legal costs of the divorce, the judge pronouncing the decree nisi will make the decision for you.


Decree Absolute
Six weeks after the decree nisi, the petitioner can have the divorce made “absolute”. This legally dissolves the marriage. However, it is usually better to wait until financial matters (“ancillary relief”) have been settled before applying for the decree absolute.


Disagreements
Disagreements generally relate to:
  • money
  • property; or
  • contact with children
Solicitors have a professional duty to settle these out of court if at all possible. It is in the interests of both parties to co-operate with this aim. We will explain to you the alternatives to court action, such as mediation. Non-cooperation slows everything down and increases costs on both sides. In an extreme case, a non-cooperative party can be ordered to pay some or all of the other spouses costs.

If an out of court settlement cannot be negotiated, either party can apply to the court to settle the matter. The court will do all it can to encourage you to negotiate an agreement, failing this the judge will make a decision.


Recording Agreement
However you go about reaching an agreement with your spouse on the terms of the divorce, we can give you advice on the best way to record what you have agreed. If divorce action is already under way, we will usually advise you to opt for a court order which will set out the terms of the agreement clearly and in a way that is legally enforceable. If you have not yet started action for divorce, we might advise making a “separation agreement”.


Children
In all matters relating to children, the children’s welfare comes before anything else. We will:
  • emphasise how cooperating with your spouse will benefit your children
  • warn against the dangers of encouraging children to take sides
  • encourage you to consider what you plan to tell your children about the marriage breakdown
  • make you aware of the alternatives to court proceedings, such as mediation
  • discourage court action as a way of settling disagreements except as a “last resort”; and
  • treat all matters relating to children as confidential

Costs

We can usually give an estimate for the costs of the actual divorce process ie from initial instructions to decree absolute. For property and financial matters, however, costs will vary depending upon the difficulty of the case. We are competitive although price is not the only issue. It is perhaps more important that you find a solicitor who is approachable and sympathetic, and whose advice you understand.


What We Offer
If you instruct Waters & Co., you can expect to receive the following:
  • we will be constructive rather than confrontational when dealing with your spouse
  • we will ensure that you understand that the best interests of any child should be put first
  • we will encourage the attitude that a family dispute is not a contest in which there is a winner and a loser, but rather that it is a search for fair solutions
  • we will avoid inflaming often already high emotions
  • we will remain objective and not allow personal opinions to influence our advice; and
  • we will make you aware of the likely legal costs at the outset, and advise you of the benefits or merits of any step balanced against the costs as the matter proceeds

Fixed Fee Consultation

Please telephone 01675 463855 or e-mail office@waterssolicitors.co.uk for information regarding a fixed fee consultation lasting up to 60 minutes. At this meeting, your particular situation will be discussed which will result in you becoming much better informed in respect of where you stand and what steps are available to you. It is your choice then whether you commence divorce proceedings or not.


February 2009