Terry & Co.

Divorce - Procedure and Time Table

 


 

 

 

 

 

 

The are various things which might hold up the timetable of a divorce in England and not the least of these is that the Respondent (ie the person who receives the divorce petition) does not fully understand it and therefore delays dealing with it. Bearing in mind that no-one likes receiving a divorce petition and that each party is understandably suspicious that the other is trying to steal a march on him/her it is quite natural that people want to understand what is happening before committing themselves.

 

In practice, most of the words of a divorce petition are self-explanatory and simply recite the details of the marriage. The part which almost invariably does cause difficulty (and often concern) is the so-called "prayer" with which the petition ends. This is normally pre-printed on the divorce petition and in most cases it reads something like the following:-

 

divorce petition

 

(1) is clear enough and causes no problems. (2) is more significant. In cases involving unreasonable behaviour or adultery the courts usually order the Respondent to pay the costs of the divorce unless there is agreement to the contrary. It is therefore sensible to come to an agreement with the Petitioner over this. "I will not defend the divorce on condition you do not seek the costs of the divorce from me", for example, often secures an agreement about costs which both parties are happy with (because it speeds things up for the Petitioner and costs less for the Respondent) but the agreement can be of any kind. If there is no agreement the court will make the usual order and the request for that is normally pre-printed on the divorce petition as in this example. If it were not included here the Petitioner would not be able to seek costs against the Petitioner and so it is sensible to leave it in until there is agreement.

 

(3) is what causes most difficulty because people do not understand it (and, indeed, there is no obvious way they could unless it is explained to them). What worries most Respondents when they read this is that they think that the Petitioner is claiming all these things and that if they return the divorce petition they will in some way have conceded these points. That is not the case. These points numbered (i) to (v) are simply the orders which may be made by a divorce court but a court cannot make such orders unless it is asked to do so. Very often when a divorce petition is filed the parties do not know what the final financial settlement will be (and neither do their lawyers). Therefore all the possible remedies available from a court are included on the divorce petition although in practice only one or two of them may eventually turn out to be relevant. "Secured provision orders", for instance are quite uncommon.

 

The reason all the possible remedies are included on the petition is so that the court does not turn round at a later date and say, "But you didn't ask for this particular order so we cannot give it to you." In circumstances such as that it would be necessary to seek leave to amend the divorce petition. In practice it is just better to ask for all the orders at the outset so as to avoid this difficulty.

 

It is also necessary to have these orders mentioned here if only to have them formally dismissed by the court at a later stage. For instance, both parties might want a "clean break" in which neither pays maintenance to the other. This is very common and it is what many couples want. In such a case the eventual court order may formally "dismiss" the Petitioner's claim for periodical payments. Once that has been done the Petitioner cannot re-open the matter in the future and there is truly a "clean break". If this request for periodical payments were not included in the divorce petition and the final consent order did not mention it either then theoretically the Petitioner could seek maintenance from the Respondent at any time in the future. It is therefore in the Respondent's interests to ensure these words are included as well as in the Petitioner's.

 

This is all rather technical and it is a pity that these things are not straightforward but the bottom line is that there is good reason why these words are included on the petition. They do not necessarily mean that the Petitioner is going to seek them all and the Respondent is not prejudiced in any way by agreeing not to defend a divorce petition containing these words. The Respondent is just agreeing to the divorce but not anything else. His/her rights in respect of the financial settlement remain quite unaffected. It is important to understand this because this is the very difficulty which usually causes people to bring a divorce petition to a solicitor. The matter needs to be carefully explained. (And there is a similar need for explanation of the so-called "Acknowledgment of Service" for slightly different reasons).

 

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice. Many of the "technicalities" which are familiar to lawyers on the various papers relating to divorce are confusing to people who read them for the first time and the explanation is by no means always obvious. Explaining their significance often requires legal help. Once they are properly explained they are not quite so terrifying.