Divorce & Separation
The decision to separate or divorce is not an easy one and it is important you understand the basic facts including what constitutes a legal separation. We encounter many clients who assume they require a Court document to confirm the fact of legal separation. This is incorrect; a physical separation is a legal separation. This is significant if there are no other grounds for Divorce.
The five grounds for Divorce are divided into fault grounds and non fault grounds.
The fault grounds are:
1. Unreasonable behaviour
The non fault grounds are:
1. Two years separation with the other spouse’s consent
2. Five years separation which does not require the other spouse’s consent
You may find yourself in a position of not meeting any of these grounds but equally sure of the fact that your marriage has irretrievably broken down maybe through a breakdown of communication between you and your spouse or a combination of other factors.
There are of course cases where a fault ground is available to you and you wish to use it as soon as possible. Indeed in a case of a Petition grounded on adultery it is prejudicial if you continue to acquiesce in the adultery for a period longer than six weeks. This means this ground cannot be used and your spouse has a defence.
The procedure on Divorce is straightforward: if financial and childcare issues are resolved a Petition can be presented in the County Court in a Division closest to where you reside. If these issues have not been resolved the Petition will be presented in the High Court Family Division.
At MKB Law a member of our Family and Matrimonial Department will draft and present the Petition without the assistance of Counsel. This is both expedient and cost effective. If a Divorce is to be presented in the High Court we will arrange for you to meet with a Barrister who will then draft a Petition on whatever ground is available to you. You will be advised on the procedure, an approximate estimate of the length of time and necessity to attend court. We will keep you appraised as to when the other spouse will be served with the Proceedings in case there is an adverse reaction.
At all times we operate in a transparent costs structure so that you understand what you will be billed for, the professional fee and the outlay. You will also be informed that your spouse will be paying the costs of the Divorce if a fault ground is used and not defended. A two years separation or five years separation divorce means you may be responsible for either 50% of the costs or all of the costs of the Divorce Petition.
The presentation of the Petition takes place in a relatively short period of time and the Judge must be satisfied that the arrangements for the children are the best that can be achieved before the Decree Nisi is pronounced.
You are then at liberty to apply for the Decree Absolute, the document which formally dissolves your marriage, on the expiration of six weeks from the date of Decree Nisi, unless there are financial matters to be resolved. At Decree Absolute stage you will be advised of the implications for inheritance and how it may be prudent to consider making a new Will as your spouse is no longer your next of kin.