In the unfortunate event of a marriage breaking down, the majority of people have little knowledge of the divorce procedure and how to go about resolving any associated issues such as contact with children and the division of the matrimonial assets.
In the unfortunate event of a marriage breaking down, the majority of people have little knowledge of the divorce procedure and how to go about resolving any associated issues such as contact with children and the division of the matrimonial assets. It is possible for parties to represent themselves in proceedings and, if they are happy to do so, they should ensure that they are aware of the procedure to prevent any errors or delays in completing the necessary paperwork.
The most complicated and emotional aspects of the end of a marriage which need to be resolved are often in relation to the children of the marriage and attempting to divide the assets. In more complicated matters, it is important that both parties seek legal advice to ensure they know the necessary procedure and their position even when an agreement is likely to be reached.
DQ's family team can provide specialised advice in matrimonial law and offer a realistic approach and sensible advice to assist clients in what is likely one of the most stressful times of their lives.
We have set out below a brief guide detailing the divorce procedure and if you would like further information on this process or any other aspect of family law, please contact Rose Kinrade and Dawn Jones to seek their advice and discuss further.
Step 1 – The Application
A couple must have been married for at least one year before divorce proceedings can be started and one party must comply with the domicile requirements. The person who is commencing the divorce proceedings is called the Applicant and the other side is called the Respondent.
There is only one ground for divorce, which is that the marriage has irretrievably broken down. To satisfy the court that the marriage has irretrievably broken down, the Applicant must prove one of the following five facts:
- The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
- The respondent has deserted the petitioner for a continuous period of at least two years immediately before the start of the divorce.
- The parties have lived apart for two years and the respondent agrees to the divorce proceedings.
- The parties have lived apart for five years (whether or not the respondent agrees to the divorce proceedings).
The grounds and reasons which are provided to the Court do not have any effect on the final outcome or ruling of the court (except in very extreme circumstances) when dealing with the finances or the children. If the matter proceeds to trial, a Deemster will not have any predetermined bias towards either party.
If there are children of the marriage (or family) an additional document "Statement of Arrangements for Children" will need to be completed and filed. This document gives the Court some information about the children and their current contact arrangements with both parents.
The parties Marriage Certificate will also need to be filed with the Divorce Application.
Step 2 – Service and acknowledgment of the Application
Once received by the Court, the Application will be checked and if completed appropriately, will be sent to the Respondent along with a Response Pack to advise the Respondent on the next steps. The Respondent will then have 14 days to file the Acknowledgment of Service advising whether they intent to defend the Divorce Application or allow it to proceed.
Step 3 – Confirming the facts in the Application
The Court will then send the Applicant a copy of the Acknowledgment of Service for their information and the Applicant must swear an Affidavit (a written statement sworn under oath) confirming that the facts stated in the original Application remain true. Once sworn, the Affidavit will then be returned to the Court.
Step 4 – The Provisional Order
If the Court is content with all documentation submitted to date, it will grant the Provisional Order of Divorce, the Provisional Order is the Court recognising that the parties wish to dissolve the marriage. This should not be confused with the Final Order and the parties remain married at this point.
Before either party applies for the Provisional Order to be made final, it is usual for all outstanding matters of the marriage to be resolved. This includes residential and contact arrangements for the children and dividing all assets of the marriage. If this cannot be agreed between the parties by way of Consent Order, it will be necessary for the parties to apply to the Court for the matter to proceed to trial and be determined by a Deemster.
Step 5 – The Final Order
The Applicant can only make an Application for the Final Order of Divorce to be granted six weeks after the Provisional Order has been issued, whilst the Respondent will have to wait three months to make this Application. You will need to consider if this is appropriate if you have not resolved all other issues.
Once the Final Order has been granted by the Court, the parties are officially divorced and the marriage is dissolved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.