Separation and Divorce

At Whitestone Solicitors, we actively encourage reconciliation if it is possible. Even if reconciliation does not take place, it should not be automatically assumed when a marriage comes to an end the parties should apply for a divorce immediately. The parties could enter into a separation agreement in order to put in place any agreement the parties have reached in relation to matters such as finances. Just like Pre-Nuptial and Cohabitation Agreements, although a Separation Agreement is not strictly enforceable the Court could be persuaded by it, if the principles of the Cohabitation Agreement (as outlined under the heading of Pre-Nuptial and Cohabitation Agreements) are followed.

With regards to Divorce, the procedure in undefended divorce cases is quite straightforward. It is rare for anyone to have to appear in court, and in most cases the matter is dealt with "on paper" or procedurally.

The party seeking the divorce must wait one year after the marriage took place before issuing divorce proceedings.

There is one basic ground for divorce i.e. the marriage has irretrievably broken down. However, this needs to be proved by one of five factors.

1. That the other party has committed adultery.
2. That the other party has behaved in such a way that the petitioning party cannot reasonably be expected to live with him/her i.e. unreasonable behaviour.
3. That the parties have been separated for a period of 2 years and the other party consents to the divorce.
4. The parties have been separated for 5 years.
5. That there has been desertion.

If one of these factors exists, divorce proceedings are started by a petition being prepared and filed at court. It is considered good practice for matters to be dealt with as amicably as possible, particularly where unreasonable behaviour is pleaded.

Assuming the Petition has been served on the other party and he/she has returned the Acknowledgement of Service confirming he/she does not intend to defend the divorce, the petitioning party will then need to complete an application called the Affidavit in Support. A District Judge will consider the application and if he/she is satisfied with it, the Decree Nisi will be granted.

At this stage if a financial settlement has been reached, a Consent Order will be prepared, signed by the parties and submitted to the Court for approval. The Consent Order will only be binding once the Decree Absolute has been granted which formally brings the marriage to an end.

The Decree Absolute can only be applied for 6 weeks and 1 day after the Decree Nisi. The whole matter should take between 3 to 6 months.

If financial issues cannot be resolved, Ancillary Relief proceedings will need to be issued, the details of which are discussed below under the heading of “finances”.