Jenny Judd interviews Grainne Fahy from BLM Law, on the ins and outs of Divorce

Jenny: If you are considering a divorce, what are the initial steps to take?

Grainne:

1. Ask your friends and family for support.
   Coming to terms with the end of a marriage is an emotionally draining process. It is beneficial to have a network to help you through it, even if it is simply looking after the children for a few hours so you can have some respite.
2. Consider therapy.
   You may be experiencing a range of emotions that you are struggling to deal with and sometimes therapy can really help you see a way through. Reaching out for help when needed is a sign of strength.
3. Consider your finances.
   Don’t stop spending but be mindful of what is being spent and how your finances are being arranged.
4. Speak to your spouse.
   It is important to find out whether you are on the same page and whether you agree that the relationship has come to an end. It maybe that relationship counselling may assist.
5. Keep communicating with your spouse for as long as you can both manage to and be kind.
   Remember that you loved each other once and you will need to find a way through this, even when separated. It may be hard, but you will feel better for it.
6. Seek independent legal advice from a family solicitor at the earliest opportunity.
   This will help you to be able to concentrate on you (and any children to the marriage). The solicitor can concentrate on the legal aspects.
7. Understand the terminology.
   The party applying for a divorce is known as the petitioner. The other party is known as the respondent.
8. Consider whether you are able to divorce yet.
   In order to petition for a divorce, you need to have been married for at least one year, and the court must have jurisdiction to deal with the divorce proceedings.
9. Discuss with your solicitor/spouse how your divorce is going to proceed.
   Currently, there is then only one ground for divorce in England & Wales, namely that the marriage has broken down irretrievably. This needs to be supported by one of five facts

• adultery;
• unreasonable behaviour;
• desertion;
• two years’ separation with the consent of the respondent;
• five years’ separation (no consent required).

That said, the ‘no-fault divorce’ – Divorce, Dissolution and Separation Act is changing the law in relation to divorce and the divorce procedure. The new law removes conflict and makes the divorce process less acrimonious. For example, it retains the sole ground of irretrievable breakdown but crucially, there will be no ‘facts’, meaning there will be no need to blame your spouse or live separately for 2 or 5 years to obtain a divorce. Instead, there will be a new requirement to provide a statement of irretrievable breakdown. No further evidence will be needed.

However, the Act is not yet in force and is not expected to be able to be used until Autumn 2021. If you do not wish to wait that long, advice should be sought as to the “pros” and “cons” of waiting. If you do decide to go ahead, the petitioner will need to choose one of the above five facts. If the parties can agree on one of the five facts, this will make the divorce process much quicker and easier.

Jenny: How important is it to find the right solicitor?

Grainne:

It is very important that you find a solicitor that really listens to you and what you want to achieve from the divorce.

At the very minimum, you should ensure that your solicitor is a member of Resolution, a network of 6,500 family law professionals. Members of the network are committed to adhering to Resolution’s Code of practice, promoting a constructive approach to family issues that considers the needs of the whole family. Members can also be accredited by Resolution in different areas of family law and accredited to different levels, which gives you a good idea of their years of experience and expertise.

International families may find it more useful to seek a solicitor who is a member of the International Academy of Family Lawyers (IAFL). IAFL is a worldwide association of practising lawyers who are recognised by their peers as the most experienced and skilled family law specialists in their respective countries. Both Resolution and the IAFL have very user friendly websites listing all of their members.

Choosing a family solicitor is a very personal choice and you will need to have trust and confidence in them. It is advisable to read up on their experience and qualifications online, including any recommendations that have been left for them. It is also worth calling a few family solicitors you are drawn to and listen to what they have to say and evaluate how comfortable and confident they make you feel.

And remember, whilst not ideal, if you find yourself in a position where your relationship with your solicitor is not going as planned, you should find another one. Any potential set back will be mitigated by the advantage of having the right solicitor.

Jenny: What should be prepared prior to your initial meeting?

Grainne:

The solicitor will usually send you a list of things to bring to the initial meeting. This will include standard documents to set up your file, such as a form of ID and a statement proving your home address.

The solicitor may also send you a document to complete, which will ask various questions about your relationship, your financial circumstances and any children of the family. If they do not, it would be worth taking a document or excel spreadsheet to the meeting setting out your and your spouse’s assets and liabilities, as far as you are aware of them. For example:

• how much the family home was purchased for,
• what the outstanding mortgage is,
• what is the home worth now,
• how much is in each of your bank accounts,
• what is in your pension pot and so forth.

If you are petitioning for a divorce, your solicitor will also need the original marriage certificate. If you have it, it is worth bringing to the initial appointment or if you have misplaced it, consider ordering one online or asking your solicitor to do so.

You may also find it useful to list some pointers or questions you have, so that you can go through them with your solicitor. Ask your solicitor whether the advice will be confirmed in writing. It ought to be and if you are sure of this, then you can concentrate on absorbing and understanding the information during the meeting, rather than focussing on taking notes.

Finally, if you have received any correspondence from your spouse’s solicitor, bring this to the appointment for your solicitor to consider.

Jenny: What are the key parts of the divorce process?

Grainne:

The current divorce procedure is described below, but please be aware that this procedure will change once the new legislation is implemented, which is not expected to be the case until Autumn 2021.

Firstly, it is important to understand the terminology. The party applying for a divorce is known as the petitioner. The other party is known as the respondent.

Secondly, it is important to satisfy the preliminary requirements. In order to petition for a divorce, you need to have been married for at least one year, and the court must have jurisdiction to deal with the divorce proceedings.

Third, it is important to remember that there is still currently only one ground for divorce, namely that the marriage has broken down irretrievably. This, in turn, needs to be supported by one of five facts.

The Facts

In summary, these are:

1. The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. The respondent will need to admit to the adultery for a petition on this fact to succeed. It must be noted that because the law defines adultery as opposite-sex infidelity, a petitioner petitioning for the dissolution of a civil partnership cannot rely on this fact, and must instead rely on the below fact of unreasonable behaviour.
2. The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. Examples include verbal or physical abuse, lack of physical affection, engaging in activities short of adultery, refusing to contribute financially and non-financially towards the family and so forth.
3. The respondent has deserted the petitioner for a continuous period of at least two years. Desertion means the respondent leaving the petitioner without good reason and without the petitioner’s agreement.
4. The petitioner and the respondent have lived apart for a continuous period of at least two years and the respondent consents to a divorce being granted. Living apart does not necessarily mean living in separate households, but rather that the petitioner and respondent live completely separate lives. Examples include not sleeping in the same bed, not cooking for each other, not doing chores for one another and so forth;
5. The petitioner and the respondent have lived apart for a continuous period of at least five years.

First Stage – issuing divorce proceedings

The next step is for you or your solicitor to draft the divorce petition on Form D8 and then send this form to the court, along with your original marriage certificate and the applicable court fee, which at the time of writing is £550. It is good practice to notify the respondent of your intention to start divorce proceedings at least seven days in advance and where possible, to send them a copy of the draft divorce petition for their comments.

When the court receives your divorce petition and provided the form is filled out correctly, the court will issue your petition and send a copy to you or your solicitor and a copy to the respondent or their solicitor. The respondent will also receive an explanation of the divorce procedure and a document called an Acknowledgment of Service, which acknowledges receipt of the divorce petition and indicates whether the respondent agrees with the contents of the divorce petition.

Second Stage – Decree Nisi

If the respondent does not indicate an intention to defend the divorce proceedings, you will be able to apply for the first stage of the divorce, Decree Nisi. You or your solicitor will need to make an application in support of your divorce petition and send this to the court. The statement poses a number of questions aimed at ensuring the contents of the petition remain true and correct and that there have been no changes in circumstances. If the court is happy, it will send you a document called the Decree Nisi.

If the respondent does indicate an intention to defend the divorce proceedings, your solicitor will advise you as to the best way forward. In reality, defended divorces are very rare.

Final Stage – Decree Absolute

After six weeks have passed from the day Decree Nisi was given, you or your solicitor will be able to apply for the final stage of your divorce, Decree Absolute. You or your solicitor will need to make an application to the court. If the court is happy, it will send you a document called Decree Absolute, bringing your marriage to an end. At this point, you are then formally divorced.

However, it is standard practice and advisable that you do not apply for Decree Absolute until a court order has been made in respect of your finances.

To read the second part of the interview, click here.

Written in conjunction with Grainne Fahy, Head of Family Law, London & South East, BLM