In April 22nd, 2014 a change was made in Family Law to have a couple attend a mediation information and assessment meeting (MIAM) to see if mediation is a viable option for them as a divorce process and as a possible way of avoiding court altogether.
A mediator can put in writing that a couple attend a mediation interview, but are choosing litigation instead.
During divorce, a judge may send spouses to mediation to negotiate just one aspect of it, such as child arrangements or finances. A mediator does not provide legal advice, even if he/she is a solicitor.
One can obtain the required divorce forms to apply for divorce from the court. The clerks will give out the correct forms but do not dispense legal advice. The Ministry of Justice website www.justice.gov.uk also has the necessary forms.
The Citizens’ Advice Bureau (CAB) is able to give some generic advice or steer one to a specialist who can be of assistance. CAB has an informative web site www.citizensadvice.org.uk.
There are various online divorce kits for simple divorces. It is still prudent to have a solicitor check over these forms before submission. In Scotland the sheriff’s court has these forms and the CAB will assist you in filling these out.
Before starting divorce, you may want to ascertain that your name is on the house deed by contacting the Land Registry, if you are unsure. If it is only in your spouse’s name, then you can register your interest in the house. For a small fee, the Land Office can do a search for the title number and send you a form to show your rights to co-own the house.
Pre-divorce, speak to a solicitor first to make sure you are not doing anything to compromise a divorce. She may advise you not to move out of the marital home or other actions. She can prevent the other spouse from getting rid of community assets or liquidating a joint bank account.
Criteria for Divorce:
- A couple must have been married for a year in England and Wales before a divorce petition can be filed.
- In Scotland there is no minimum time to be married before initiating divorce.
- In Northern Ireland the minimum time is two years before divorce proceedings.
Domicile is the country where one has an attachment or connection, such as by birth. It can be where you have a passport or your family resides.
One can be living abroad and still get a divorce in the UK. An English couple working in Los Angeles can still have their divorce proceedings through the English court, because they are domiciled in the UK. If the divorce is not contested (disagreed upon) then neither has to appear in court and their solicitors can handle the divorce from afar. Neither spouse can have filed in another country first.
Habitual residency is the place where you live and work. One does not have to have been born in that country, but now has long-term ties to that locale.
If a person from India has lived in London for many years, she is entitled to file to a divorce in England. It does not matter that she makes trips back to Delhi every year to visit family, because her life is in London. In England and Wales the minimum time of habitual residency before being able to initiate divorce is one year.
Jurisdiction is the geographical area that has legal authority to hear a case. If ones lives in Leeds that is the place where the divorce petition is filed, not in a different city such as Manchester. One initiates divorce where one lives or has domicile. This is the location where one has habitual residency.
Two Americans were studying in Cambridge and got married in this country. They lived in the Cambridgeshire area for three years before returning to the States.
After two years there, they decided to divorce. Even though they married in England, they no longer have habitual residency so would have to be divorced in the US. Had they decided to divorce before leaving England, they could have gotten a UK Divorce. They were married and had residency in England for over one year.
Getting Started with Divorce in the UK:
In England and Wales, the person filing for divorce is the petitioner and in Scotland it is the pursuer. The other spouse is the respondent in England and Wales and the defender in Scotland.
The process of divorce commences when the petitioner files the divorce petition to the court. Included with the petition is:
- Marriage certificate
- Issues of divorce with one of the grounds
- What you want to receive financially
If the couple has children then a Statement of Arrangements must also be sent which includes:
- Where they now live and future visitation plans
- Their school and any educational or after school needs
- Any child support requested
- Any disability or health requirements
- A Parenting Plan may be attached
The spouse must formally be served these papers in one of these ways:
- The court posts these papers to your spouse adding the Acknowledgment of Service You or your solicitor will be notified if they are returned back to the court as undeliverable.
- A bailiff can serve the divorce papers directly to your spouse. A certain form is filled out and a fee is collected for this service.
- One can pay a private processor to find the spouse and serve the papers.
- In Scotland there is no Acknowledgement of Service sent to the defender (respondent) spouse. They receive the initial writ from the court containing the grounds for divorce, arrangements for children, and finances. If the other spouse disagrees with any of these, then they fill out a Notice of Intention to Defend form and return it to the court.
The respondent has a week to respond and to send an Acknowledgement of Service to the court verifying that it was received and contains the following:
- If he/she consents to the divorce
- Objects to anything in the petition
- Agrees or disagrees with Arrangements for Children
The respondent has twenty-eight days to file an answer if he intends to defend (contest) the divorce. He can file a ‘’cross petition’’ if he feels that the marriage is over, but not for the reason that the petitioner stated in the divorce petition.
After the respondent returns the Acknowledgement of Service to the court, a copy is posted to the petitioner or their solicitor.
`The next step in the divorce process is the petitioner files an Affidavit with the court. This is a sworn statement that is done before another solicitor (not yours) or a court official which verifies that the signature on the Acknowledgement of Service form is that of your spouse. Also you confirm what is in the Divorce Petition is correct.
Both spouses fill out the incredibly detailed, twenty-eight page Form E or Statement of Means, and give it to the court and the other solicitor. If there is to be a court hearing, then Form E is to arrive thirty-five days ahead of time. This form is a disclosure of what one’s assets are and copies of financial records are attached to this sworn document. Mediation and collaborative divorce may use Form E to collect financial data.
Questions included in Form E or Statement of Means are:
- Standard of living you had during your marriage and what you expect post-divorce
- What debts you have and what is owned to you
- Income needs for yourself and children residing with you
- Lists of investments, bank accounts, pensions with account numbers, companies and amounts
- Insurance with surrender value
- Properties and their worth
- Cars and other household assets and their value
In Scotland there is no Form E or formal disclosure document. When the spouses come to a financial agreement, the signed statement is registered in the Book of Council and Session in Edinburgh.
If there is a financial change of circumstance post-divorce, then an alteration to this agreement can be made. The Statement of Means or Form E, is not used in Northern Ireland, but rather the court asks for similar financial disclosure at the preliminary hearing.
A judge goes over the paperwork including the Statement of Arrangements for Children. If he does not have any questions and approves of the paperwork, then a Certificate of Entitlement to a Divorce Decree is issued. He posts a copy to the Petitioner giving the date of when the Decree Nisi will be issued.
No court appearance is needed for this provisional decree. The Decree Nisi is issued in the middle of the divorce proceedings. In Scotland there is no Decree Nisi.
The petitioner must wait six weeks and a day before the Decree Nisi is made absolute. The Decree Absolute is not issued automatically and must be requested.
This interim period gives time to work on any financial or child arrangements before the divorce is finalized. The spouses may be sent to mediation to negotiate either child or financial arrangements before the divorce is finalized.
If the petitioner does not apply for Decree Absolute within four and half months, then the respondent is free to do so. If neither has applied for this within a year, then a judge may mandate an explanation of why there was such a long wait. When the Decree Absolute is issued, then the divorce is finalized.
Wendi Schuller is a nurse, hypnotherapist and is certified in Neuro-linguistic Programing (NLP).
Her most recent book is The Global Guide to Divorce and she has over 200 published articles.
She is a guest on radio programs in the US and UK. Her website is globalguidetodivorce.com.