DIY divorce - the pitfalls

Taking the decision to end your marriage can be very difficult.

Taking the first steps to issuing your divorce proceedings can be even more daunting - with the law and procedures for obtaining a divorce being extremely complex.

Alison Gaddes, family  law solicitor at Wake Smith looks at the complications and pitfalls you can get caught up in, if you decide to issue your own divorce proceedings - without the help of a solicitor.

1. Locate your marriage certificate, if you don’t know where it is, you will need to contact either the registry where you were married, or the church. Do not attempt to draft your petition without first having your marriage certificate to hand.
2. You cannot get divorced unless you have been married for more than one year. Therefore you will only be able to issue divorce proceedings on the day after your first anniversary. Prior to one year, you are able to issue Judicial Separation proceedings - although these are rare in practice.
3. The court charges a fee for issuing the court papers. This fee changes from time to time and so you will need to look on the court website. Depending on your income, you may be entitled to a fee remission which is a reduction in the court fee, or complete exemption from the fee, if you are on a low income.
4. The next step is drafting your petition. You must complete the details exactly as they appear on the marriage certificate.
5. You then need to decide on what fact you wish to rely on. There are five facts, adultery, behaviour, desertion for two years, two years separation with the other parties consent, and 5 years separation without consent. The most common divorce petition is an unreasonable behaviour petition. You will need to think of around 5 or 6 examples of unreasonable behaviour which has led you to conclude that you no longer wish to be married. The other facts are adultery, but unless the other person will admit the adultery, it is not advisable to proceed with an adultery petition. Desertion, is very strict and applies only in very rare circumstances. If you want to wait two years to get divorced then you can issue on the ground of two years separation as long as your spouse consents, otherwise, you will have to amend your petition to a behaviour petition or wait five years.
6. You need to tick all of the boxes in the Prayer, for financial orders you are seeking, Failure to tick the appropriate box can cause problems later down the line when sorting out your finances. If you have children, then also tick all of the boxes that relate to them even if the children are not living with you at the moment. I have seen children moved from one parent’s care to another during the course of divorce proceedings, so it is better to be safe than sorry.
7. There are only a limited number of courts who deal with divorce, so you will need to find the court which is closest to where you live.
8. Send the petition, plus two copies to the court, along with your original or certified marriage certificate, and your court fee or exemption form, with documentation. The court will then issue the proceedings, they will send the court papers directly to your spouse.
9. You will then receive a notice from the court confirming the date of issue and when the papers were sent to your spouse. The form will say that the respondent has a week to respond. In practice you would leave it around 14 days until you contact the court, to ask whether the acknowledgement of service has been filed. Once they have completed and retuned this form to the court the court will then write to you confirming you can now proceed to the next stage of the divorce which is to apply for the Decree Nisi.
10. To apply for the Decree Nisi you need to complete a statement in support of the divorce there is a separate form for each fact. You need to complete the statement which relates to the fact you issued your proceedings on. Once you have completed the form and exhibited a copy of the acknowledgement of service from (there will be a “A” written at the top of the form) you need to send this back to the court with a form called the application for the decree nisi. The court will then list the case for the pronouncement of the Decree Nisi.
11. Once the Decree Nisi is pronounced, the court shall send you the Decree Nisi out in the post. You will both receive a copy. You will then have to wait 6 weeks and one day until you can apply for the Decree Absolute making your divorce final and binding.
12. A word of warning before you apply for the Decree Absolute. If your spouse has a pension, a solicitor would not recommend that the petitioner apply for the Decree Absolute until the party’s finances have been resolved and implemented into a consent order. The reason being that if your spouse died after the Decree Absolute was made but before you were able to agree a financial settlement, you would lose the right to your spouse’s death in service benefits which could be considerable depending on the pension provision. It is therefore better to obtain independent legal advice as to whether applying for the Decree Absolute before resolution of your finances has taken place.
13. You will need a solicitor to write the consent order to ensure it complies with the courts drafting requirements and protects your interest. If you do not enter into a consent order, then you and your spouse could be forever financially responsible for one another. This could pose problems later down the line if you become wealthy as your former spouse could come back for a claim against you for money your earned or inherited after you divorced.

With all this in mind, why not speak to a specialist in the field for peace of mind?

For advice about what would be best for you in your specific personal circumstances contact Alison Gaddes on 0114 266 6660 or at [email protected]