How do I issue divorce proceedings?
By Erica Cottrell
At such a difficult time it is essential to take advice from an experienced family law solicitor, who will be able to give you advice tailored to your particular circumstances.
To begin divorce proceedings you need to have been married for at least a year and the marriage must have irretrievably broken down. The court then need to have jurisdiction to deal with the divorce based on where the parties to the marriage live.
Either one of the parties can file a Divorce Petition with the court stating the marriage has 'irretrievably broken down'. That party is then known as the 'Petitioner' and the other party is then known as the 'Respondent'. The Petition has to be based on one of five facts:
- Adultery by the other party (same sex couples cannot rely on this fact)
- Unreasonable behaviour by the other party
- Two years' separation with the consent of the other party
- Five years' separation (no consent required)
- Desertion by your husband or wife
The original marriage certificate must be filed with the court (or a certified copy) and a fee paid (currently £550) to start the proceedings. If you both agree the divorce should proceed undefended the procedure is relatively simple and does not require attending court. If the divorce is defended (which is rare) you will need to attend court.
Financial matters will need to be dealt with as part of these proceedings to provide for the needs of both parties and any children. A range of orders can be made eg in relation to pensions, housing, maintenance.
You may need assistance to resolve such matters as who the children live with, or how much time they should spend with the other parent. The court makes no orders in relation to children unless one of the parties issues an application for an order. If agreement cannot be reached regarding the future arrangements for the care of the children, you could attend mediation to try to resolve issues or apply to the court for an order. (Please note that save for emergency situations a court application cannot generally be made unless the applicant has at least attended a MIAMS (mediation information assessment session).