Michelle Buckle, Stuart Barton (Head of Department), Samantha Cole, Paula Fraser
During 2010 nearly 120,000 couples went to the court to ask for a divorce. This was actually the first time that the divorce rate had increased since around 2003. It is a pretty likely that whilst some of those couples obtained legal advice during their divorce, many decided to ‘go it alone’ and obtain a DIY divorce.
In these cost-conscious times, it is no surprise that a DIY divorce looks attractive. Forms can be downloaded from the Ministry of Justice website or obtained from the court directly. There are guidance leaflets available which explain the process and procedures. If you happen to get really stuck, you can always type ‘divorce’ into a search engine and watch as 118 million results appear.
However, solicitors often encounter clients whose DIY divorce has gone off the rails. The court has refused to grant them a decree of divorce but they don’t know why. More importantly, they don’t know how to rectify the problem. What follows are some of the most common traps that await the DIY divorcee and how to avoid them.
The 1 Year Rule
It is not unheard of for marriages to break down very quickly. If this should happen to you, the obvious temptation is to obtain a divorce ASAP. You may have to wait though. The court cannot consider any application for a divorce unless you have been married for at least 1 year.
Lost in translation
If you were married abroad and your marriage certificate is not in English, a translation of the marriage certificate is required by the court. This translation must be certified by a notary public or authenticated by the translator.
Names, dates and places
In your divorce petition, the court requires the exact details of the parties to the marriage and the place where the marriage took place. ‘Exact’ here means that. Whatever is contained in the marriage certificate must be inserted in the divorce petition. Accuracy is important.
Adultery no 1 – I’m at fault
You can’t seek a divorce based upon your own adultery. If you are the person at fault, it is down to your partner to seek a divorce.
Adultery no 2 – The 6 month rule
If your partner is unfaithful, the clock starts ticking from the date when you first became aware of their infidelity. If you live together for a period, or periods, exceeding 6 months, you cannot rely on your partner’s infidelity as a fact for a divorce petition.
Unreasonable behaviour no 1 – How unreasonable can you be?
Unreasonable behaviour is one of the most common facts used for divorce petitions. If you are relying on this fact, it is not good enough to say ‘we were not getting on.’ A detailed character assassination of your partner is not required. It may make you feel better but it will not assist in the long-term. However, the court does need to know what they did, how often they did it and how it made you feel.
Unreasonable behaviour no 2 – Living together after separation
If you are relying on unreasonable behaviour, the strict legal definition of this is that you ‘cannot reasonably be expected to live’ with your partner. If you are still living together in the same household, the court needs to know the details of this arrangement. Do you sleep in separate bedrooms? Do you eat separately? It is also useful to inform the court of what steps are being taken by you or your partner to find alternative accommodation.
So when did you separate?
If you are seeking a divorce based upon either 2 years’ separation (if your partner agrees to the divorce) or 5 years’ separation, the date of separation is clearly vital. You don’t have to be 100% exact. The month and year will suffice. However, you do need to ensure you have been separated for the required length of time before you apply for a divorce.
When you apply for decree nisi, the court asks you to confirm any changes in circumstances since the date of your divorce petition. This applies to both you and your partner. New addresses, new occupations or a change in arrangements for the children of the family must be provided. Failure to provide this information may result in the court refusing to grant you decree nisi.
6 weeks and counting
If you are the person seeking the divorce, you can apply for decree absolute 6 weeks after the court grants you decree nisi. If you happen to apply for decree absolute more than 12 months after decree nisi, the court needs a written explanation as to the delay. They also need to know whether you have lived together with your partner since decree nisi and whether a female party to the marriage has given birth to a child since decree nisi.
If you are in any doubt as to the procedures for obtaining a divorce or have encountered a problem with your DIY divorce, why not give us a call?