Divorce after Christmas – written by Ayeisha Khandia, Senior Solicitor at Fountain Solicitors
Divorce- the dreaded D word. It can be the end of a long and painful marriage or a short and regretted one. Either way, the procedure is the same and it is usually better to have proper and early legal advice before starting the process. There are many sites which purport to give advice on “quickie” divorces- promising a divorce within 2 or 3 months. Ayeisha Khandia a Solicitor at Fountain Solicitors in Walsall says ” I have been practising family law for over 20 years and the “quickest” divorce was done in around 4 months. My usual time estimate is 4-6 months if it is straight forward “.
The first thing you need to know is that you can not apply for a divorce until 1 year after the marriage. Secondly, you need to know if you need an English divorce or not. For example, if you had a nikah only in this country and it was not conducted in a place which was recognised as a registered venue, you would not need to apply for an English divorce.
Many people also do not know that if you married abroad and your marriage was recognised, you would need to get a legal divorce to end the marriage and be able to re marry. Ayeisha Khandia of Fountain Solicitors in Walsall says ” I have come across many cases where, eg the couple got married say in Bangladesh, they live in England and there is an islamic talaq given. This ends the islamic marriage but the parties are not legally free to remarry until the English divorce is finalised – otherwise they could be guilty of bigamy and face prison”.
You will need your original marriage certificate and a recognised translation of it if it is in a foreign language.
There is only one “ground” for divorce namely that the marriage has broken down irretrievably. There are 5 “sub grounds” one of which must be chosen and proved to be able to satisfy a district judge that the marriage has broken down. These are:1. Adultery ( on the part of the other spouse obviously!) 2. The other party has behaved in such a way that it is unreasonable to expect the petitioner to continue to live with the other person 3. Two years separation and the other party consents to the divorce 4. Desertion 5. Five years separation.
In my experience, ground 2 is the most commonly used. It is important to draft the reasons correctly otherwise when the petition is scrutinised by the judge, it could get rejected and you would have to amend the petition, pay a fee and more or less start all over again. Our firm had a case where a young man drafted his own petition and could not understand why it was rejected when all he had put was ” irreconcilable differences and we don’t get on”! When he instructed me he said he did not want to say anything nasty. When I re drafted the petition after having questioned him further, one of the particulars was that she would not let him watch any TV except for the news and even said that watching match of the day was banned!
It is important for the petition to contain exact and accurate details and this is why I would recommend at least an initial consultation with a qualified solicitor. You may be surprised by the things you had not considered and which an experienced solicitor can advise upon.
Once the petition is drafted and sent to the court with the court fee (currently £410), it is issued with a case number and posted to the other party who is called the Respondent. He or she has 7 days to return the form and say whether they agree with the divorce or not. Many respondents do not return this form and in that case you must prove only that he or she has had the petition. The easiest way to do this is to arrange for the documents to be served personally.
Once you have proved service through the signed acknowledgment or process server, you must complete a statement in support of your petition and send it with a request for decree nisi. It is at this stage that the papers are placed before a district judge who checks the particulars and, if satisfied, will issue a certificate of entitlement and set a date for decree nisi. You do not need to attend court.
Once the decree nisi is pronounced you must wait at least 6 weeks and one day before applying for the decree absolute. It is only when you get your decree absolute that you are legally divorced.
You will see from the above the many pitfalls of “DIY” divorce and the importance of good legal advice.