DIVORCE – QUESTION & ANSWER

1. Q What is meant by Respondent and Petitioner in the context of divorce?

A The Petitioner is the person who applies for a divorce or judicial separation. The Respondent is the person who receives the divorce or judicial separation papers from the court.

2. Q I married 6 months ago but my spouse and I both recognise the relationship has irretrievably broken down and want a divorce. Can I start a divorce now?

A No; a divorce petition cannot be presented until one year has expired from the date of marriage.

3. Q I was born in England but have lived abroad for the last ten years. Can I begin divorce proceedings in England and Wales?

A This is a complex area. English Courts will have to consider domicile and habitual residence of both husband and wife. Please seek advice.

4. Q I want a divorce now but don’t want to blame my spouse in the divorce petition for the breakdown of the marriage. Is this possible?

A If you have been separated for less than two years, to begin divorce proceedings immediately you can only petition because of your spouse’s adultery or unreasonable behaviour. If there are no such facts, or if you do not wish to petition on either of them, you must wait for two years from the date you separated before a petition can be presented, and then your spouse must consent to the petition for the divorce to proceed. If your spouse does not consent on the fact of two years’ separation, you must wait five years from the date of separation before you can petition, and then your spouse’s consent is not needed. Alternatively, if your spouse has deserted you, you can present a petition on that fact two years from the time you were deserted. A petition based on desertion can proceed without your spouse’s consent.

5. Q My husband and I have separated but we both still live at the home we shared when we lived as husband and wife. I intend to present a petition when we have been separated for two years. Does it matter that we both still live in the same property?

A A husband and wife are treated as having separated unless they are living at the same property. If you both reside at the same address, you as the Petitioner will have to confirm to the court that from the time you separated you have lived as two separate households under one roof. You must not have socialised together, cooked or cleaned for each other, or taken meals together.

6. Q I have just received my Decree Nisi. Can I now apply for Decree Absolute?

A No; the application for Decree Absolute cannot be made until 6 weeks and one day after pronouncement of Decree Nisi, save in exceptional circumstances. You may wish to delay applying for Decree Absolute until the financial proceedings are settled, particularly if there are pensions involved.

7. Q I have now received my Decree Absolute. Are the divorce proceedings now over?

A Yes, the marriage is now dissolved. It is important that you keep the Decree Absolute in a safe place as you will need to produce it if you re-marry. It is also important that you make a new will as any gift you made to your spouse in a will made before Decree Absolute will lapse once Decree Absolute is pronounced unless a contrary intention appears in the will. Although the divorce has concluded, however, financial matters may not yet have been settled.

8. Q Do I have to share my pension with my spouse on the breakdown of our marriage?

A The court can “attach” a spouse’s pension so that a capital lump sum and income for a spouse can be paid from the other spouse’s pension. In those circumstances, the pension remains as one fund. If a divorce was filed after 1st December 2000, pension sharing is available so that when a pension sharing order is made for a spouse from the other spouse’s pension, each will then have their own separate pension scheme, either in a completely new fund or as part of the original fund.