Written by Helen Pittard

Head of Dispute Resolution, Director of Business Development & Marketing at 174 Law

Helen is an advocate for minimising harm caused to children arising out of Parental Conflict. She is a Director / Trustee of The Family Initiative trading as Voices in the Middle  which offers digital support services to children whose parents are going through the separation process. She Chairs the Family lawyers / Mediators Steering committee and is fully accredited in every area she practices in not only with the Law society but also bodies such as Resolution and Family Mediation Council.

The first question being do you want a divorce and do you wish to Petition him? If so there is only one ground on which a petition for divorce may be presented to the court by either party to the marriage; that is, that the marriage has broken down irretrievably. However, to establish this you must satisfy the court of one or more of five facts three of which to do with the effluxion of time with a minimum of 2 years or alternatively unreasonable behaviour or Adultery . If the court is satisfied that a fact is proved, it must grant the decree nisi , being a declaration the marriage has irretrievably broken down.

The first question being do you want a divorce and do you wish to Petition him?

In the case of an extra-marital relationship, the most likely of the five facts you would wish to rely on is adultery. This is that the your Husband has committed adultery and you find it intolerable to live with him . There are therefore two elements which must both be proved to the court; adultery and intolerability. However, section 1(6) of the MCA 1973, provides that only conduct between the respondent and a person of the opposite sex can constitute adultery. In the circumstances, you may prove or infer adultery in a number of ways.

The method most commonly used in undefended divorce proceedings is a confession of adultery by the respondent. This can be by either a separate confession statement signed by the respondent, or by the respondent answering yes to the appropriate question in the Acknowledgment of Service.

In the absence of a confession then, to proceed on this basis, you need to produce evidence to prove or infer adultery which can include; the birth of a child on proof that the husband is the father, a conviction of the respondent in a criminal court of an offence entailing sexual intercourse or a finding of adultery against the respondent in any earlier case. In essence you have to establish to the court that your husband has had sexual relations with another woman.

Once the decree absolute has been granted, you are divorced.

As well as the adultery, intolerability must also be proved, however this element rarely causes any problem. You merely need to convince the court that you find it intolerable to live with the respondent. The intolerability can be proved by an assertion of intolerability in a statement sent to the court as part of the divorce proceedings. In practice, in undefended cases, courts do not even require the petitioner to state the reason why they find it intolerable to live with the respondent.

There is the option for the person with whom your Husband has committed adultery to be made a party to the divorce proceedings and they would therefore be the co-respondent. However, even if the co-respondent is made a party, it is not necessary to obtain an admission of adultery from the co-respondent if the respondent admits the adultery, because the fact requires only evidence that the respondent has committed adultery. It is not necessary however to make the co-respondent a party to the proceedings and in fact it has become established good practice to refrain from naming a co-respondent so as to reduce animosity between the parties and prevent the proceedings from becoming unnecessarily protracted in the absence of cooperation from that party. The Family Procedure Rules (Practice Direction 7A) go further and state that the co-respondent should not be named unless the petitioner believes that the respondent is likely to object to the divorce and there is a genuine risk that the proceedings will be defended.

Cohabitation between the parties may affect the your ability to rely on this fact. If you cohabited for a period, or periods together, exceeding 6 months after you discovered the adultery. This period runs from the time at which the petitioner discovers the adultery and it is not relevant how long ago the adultery was actually committed. If the respondent has committed adultery on several occasions, time will not begin to run until after the petitioner learns of the last act of adultery. If the adultery is on going then time is not an issue provided this can be proven or admitted to. Cohabitation for a period of less than 6 months must be disregarded by the court when determining whether the petitioner found it intolerable to live with the respondent.

Perhaps the most useful alternative reason to rely on is your Husband’s unreasonable behaviour. This is that he has behaved in such a way that you cannot reasonably be expected to live with him. This is an objective test and your word alone is not enough. The court will have regard to the history of the marriage and your respective personalities. This is a question of fact in each case. It is important to note however, that this does not need to be grave or weighty behaviour and there is also no need to prove that the respondent intended to inflict misery upon you. In a typical, undefended divorce, the court will look for 3-6 examples of the respondent’s behaviour. The type of conduct that can be included will always depend on the particular circumstances of the case. Relevant matters may include, but are not limited to; physical or verbal abuse, intimate relationships with those of the same or opposite sex, cruelty, failure to provide money, food, affection or attention. The fact that the petitioner has simply become bored with the marriage, or fallen out of love with the respondent, will not be sufficient.

If you wish to pursue a Divorce but don’t wish to project blame then you may wish to relay on two years separation and consent. This is that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the your Husband consents to a decree being granted. To prove this you do not necessarily have to have lived in separate homes but you do have to have lived separate lives, for example, eating and doing domestic chores separately. This is notoriously difficult to prove and therefore, unless the parties have been living physically separate for a period of 2 years, this fact is unlikely to be used. However your Husband will need to consent to this. If consent is never given then the divorce petition will have to be dismissed and reissued using a different fact which can prove costly in time and money. This may result in you having to wait until you have been separated for a period of 5 years.

Once the petitioner has filed for divorce, a copy of the documents will be sent to your Husband. He will be asked to return an acknowledgement of service, confirming that the documents have been received and stating whether he intends to defend the divorce. Provided that the divorce is not being defended, you will then be able to apply for the Decree Nisi being a declaration by the court that your marriage has irretrievably broken down. Six weeks and one day after that, you can apply for the decree nisi to be made absolute. Once the decree absolute has been granted, you are divorced.

You can apply for costs against your Husband within the Divorce Petition. If you are not exempt from the court fee this is currently fixed at £550 disregarding any legal fees you may incur. On an application for costs, the decision is always in the discretion of the court, but the general principle is that an order for costs will be made in favour of the Petitioner provided there has been compliance with the notice requirements concerning the amount of costs and there has not been any attempts by the Respondent to defend or file and answer. Often costs can be negotiated upon and agreed prior to the application for the Decree Nisi being made.

If you do not wish to pursue a divorce petition yourself then it will remain open for your Husband to do so. Of course he will need to establish a reason and you believe he would not have any such reason but my experience in these circumstances are that the other party issues on the basis of Unreasonable Conduct leaving it open for you to have to defend such petition if you don’t want this to proceed. This can be a timely and costly exercise. It is recommended you try and agree how you wish to proceed so there are no hidden surprises or agenda’s and Mediation can be recommended for this.

Although children are not parties to the divorce, they are often deeply affected by the breakdown of marriage. Since April 2014, the consideration of any children has been removed from the divorce process itself. Consequently, parents are left to pursue appropriate remedies separately in the event of there being a dispute. If there is a dispute in relation to the children following the divorce, it is open to either party to make an application under s8 Children Act 1989 and there are three different types of orders which can be applied under this:-

  1. Child Arrangements Order – used to regulate when or with whom a child is to live or spend time with.
  2. Prohibited Steps Order – an order that no step that could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken without consent of the court.
  3. Specific Issue Order – giving directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility for a child.

Each of these orders will determine a particular matter relating to the child’s upbringing and last until the child reaches the age of 16 (or 18 in exceptional circumstances). However we would encourage parties where appropriate to try and resolve these matters between themselves or through mediation.

When parties separate it is necessary to also consider you financial affairs in order to sever any financial ties. There are a number of financial orders available to spouses and/or children under the MCA 1973 upon marriage breakdown. However, as financial provision between spouses is closely linked with provision for any children, it is also important to appreciate the impact of the Child Support Act 1991 in that the court does not have jurisdiction to make Child Maintenance orders save for a significant minority of cases. The child Maintenance Service is the body responsible for assessing child maintenance in the absence of any agreements and we would recommend you visit their website for more details relating to the same https://www.cmoptions.org/ The court, therefore, retains jurisdiction to deal with cases in which the CMS has no jurisdiction, for example, in relation to step-children and children who are too old to be qualifying children.

The powers of the court to make financial orders fall into two main categories; income orders and capital orders. Income orders are; maintenance pending suit, periodical payments and secured periodical payments. Capital orders are more diverse and include; lump sum orders, property adjustment orders, orders for sale, pension sharing orders and pension sharing compensation orders. Spouses may apply for any of these orders, or indeed all of them, on or after filing of the divorce petition. However, with the exception of maintenance pending suit, the application cannot be heard until decree nisi and no order will take effect until decree absolute. By contrast, most applications for provision for children may be made and heard at any time, and such orders take immediate effect. Again we would encourage mediation as a means of addressing such issues where appropriate.

In most cases, the arrangements for financial provision for a spouse are finalised after the divorce itself has gone through. However, parties should take care to apply for financial provision before remarrying, because after they have remarried they are no longer entitled to apply or pronouncement of the Decree Absolute.

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