Your Spouse Has Filed for Divorce

When you receive a Divorce Petition issued by your spouse, you will need to complete and return the Acknowledgement of Service form and return it to the address stated on the form within 7 business days starting with the day after you receive the petition. You have to complete the original copy supplied by the court – this form is not available online.

You should make sure that you keep a copy.

INTERNATIONAL DIVORCES

If there are court proceedings in any countries outside England and Wales relating to your marriage that could affect its validity, please note that international divorce is extremely complicated and time sensitive, and so we recommend you take advice from an international divorce lawyer as soon as possible if you do not agree with the proceedings continuing in this country.

Sometimes it can make a major difference to the resolution of financial issues which country the divorce takes place in. English law is generally considered to be a generous jurisdiction (hence, why it is often referred to as the "divorce capital of the world"), and other jurisdictions may be far less favourable to the financially weaker party. Another major difference between England and other jurisdictions is our treatment of pre-marital contracts (known as pre-nuptial agreements).

If it is possible to issue divorce proceedings in another jurisdiction, it is not uncommon for each spouse to issue separate proceedings, one party here and the other in another jurisdiction.

International divorce is therefore particularly complicated, and it is crucial to take legal advice. Speed is vital to ensure that you are first in issuing your Petition. You should take advice from a divorce lawyer before considering other methods of resolving your case such as mediation or collaborative law, or even counselling, so that your position is protected in the event that those initiatives are not successful.

If there are already proceedings for divorce, or other proceedings challenging the validity of your marriage, in another country, then what happens next will very much depend on the type of proceedings and where they are located. In order to avoid different orders in competing jurisdictions, EU States (other than Denmark) are all subject to the Brussels II Revised Regulation, which provides that in principle the country in which the proceedings are first issued has jurisdiction. Even a matter of minutes can make the difference. Where one of the countries competing with England is not an EU State the situation is more complicated – the English court will have to determine whether it is the most convenient forum for the dispute. This will depend on matters such as where the parties are living, where the assets are, and what relief is available in the competing jurisdiction. In either case, it is important to take advice immediately.

If you receive a divorce petition and you need to complete the Acknowledgement of Service form you are required to give details of proceedings in another country that may affect the validity of the marriage. You should state the following information in the Acknowledgement of Service to enable the court to assess whether it needs to contact the other relevant court:

  • The country in which the proceedings are happening.

  • The name of the court in which the proceedings are being heard.

  • The subject matter of the proceedings.

  • The date the proceedings started (if known).

  • The case number of the proceedings (if known).

If you disagree with the jurisdiction set out in a Divorce Petition issued by your spouse, your spouse has to explain in his/her Petition the basis upon which they have jurisdiction to issue the Petition. This has to be one of the following:

  • when they began divorce proceedings, both of you were habitually resident in England or Wales

  • both of your last habitual residences was England or Wales and one of you was still living there when divorce proceedings began

  • at the time the divorce proceedings began, you were habitually resident in Wales or England

  • for 12 months prior to the start of divorce proceedings, the petitioner applying for the divorce has been habitually resident in Wales or England

  • for 6 months prior to the start of divorce proceedings, the petitioner has been habitually resident in England or Wales, and is also domiciled there

  • you and your partner were both domiciled in England or Wales when divorce proceedings began

  • no other court of a “contracting state” to the Brussels II Revised Regulation has jurisdiction, and either you or your partner was domiciled in England or Wales when divorce proceedings started.

Your spouse will have chosen one of these options and set it out at part 3 of the petition. If you do not agree, but nevertheless wish the proceedings to be heard in England and Wales, and there is another ground for jurisdiction you consider applicable, you should state this.

If you do not agree, and you want divorce and financial proceedings to be determined in another jurisdiction, you should immediately obtain foreign legal advice before completing the Acknowledgement of Service form. You need to be very careful not to do anything that might indicate that you have submitted to the jurisdiction of the English court.

GROUNDS FOR DIVORCE

If you disagree with the “ground” for divorce stated in the Petition, e.g. you do not think that you have behaved unreasonably, you have not committed adultery or you have not been apart as long as the petition states, there is only one "ground" for divorce: that the marriage has completely broken down and any reconciliation is impossible. However, in order to prove this, the person starting the divorce process (the petitioner) will need to establish one or more of the following five facts:

  • the respondent (the other spouse) has committed adultery. There is no need to name the other person;

  • the respondent has behaved unreasonably. The "behaviour" here need not be serious, but it cannot be trivial;

  • the respondent has deserted the petitioner for two years or more (this is very rarely used);

  • the couple have separated and have been living apart for two years, and the other spouse agrees to the divorce;

  • the petitioner has lived apart from the respondent for five years or more. In this case, no consent is needed from the respondent.

In the case of an adultery petition: the acknowledgement of service form will ask you, do you admit the adultery?

If you answer "Yes" here, this will serve as proof of the fact of adultery. If, for some reason, you feel strongly that you would prefer the petition to be based on the fact of unreasonable behaviour rather than adultery, this should be communicated to the petitioner or their solicitor before the acknowledgment of service is filed. In such circumstances the parties may agree to amend and re-file the petition. Adultery can only be committed by people of the opposite sex.

In the case of an unreasonable behaviour petition, if you do not agree with the particulars of the behaviour stated by your spouse, then you can write to the petitioner or their solicitor and ask them to amend the particulars.

Unfortunately, unless you have been separated for two years, then the only options are adultery or the unreasonable behaviour of one party. You will therefore need to consider whether you feel strongly enough about the particulars alleged to defend the Petition.

COSTS OF THE DIVORCE PROCEEDINGS

If you do not wish to defend the case (i.e. to object to the divorce petition filed by your spouse) but you wish to object to paying the costs of the proceedings, for instance if you believe your ex-partner’s claim for costs in the divorce petition are unreasonable, you should write to the petitioner asking whether they are prepared to agree either:

  • Not to pursue an application for costs.

  • To share the costs equally between the parties.

  • A limited figure for costs (for an undefended divorce this should be in the range of £600-1,200 plus VAT and disbursements but will depend on your location).

THE FAMILY HOME
THE RIGHT TO LIVE IN THE HOUSE

Knowing whether you should move out of the family home during the divorce depends. Things that you will need to consider are:

  • whether you or your partner have somewhere else to go, what might be best for your children and your safety. If you are in an abusive relationship you can obtain an occupational order, which could exclude your partner from the home;

  • What would you like to happen to the home in the future - moving out will not stop you from having the home as part of your divorce settlement. However, it may make things more difficult as it could make it harder to prove that you need that property going forward.

If your spouse is the sole owner of the house where you last lived together as a married couple you have a legal right to live in the house, called Matrimonial Home Right.

To protect this right, you must register it at the Land Registry. It is free to do so. You will need to complete this form:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/601612/HR 1 2017-04-01_.pdf

If the property is unregistered, (which will only be the case if it has been owned for many years) it is still possible to register a Home Right but the process is different. If you think this applies to you, contact a lawyer.

Registering your Home Rights will make sure that if your spouse tries to sell the property, the potential buyer will be aware of your interest.

This is only valid whilst you are married, that is until Decree Absolute has been issued, as your right to live in the home stems from your marriage.

HOW TO PROTECT THE RIGHT TO LIVE IN THE FAMILY HOME? OCCUPATION ORDER

An occupation order manages who can live in the family home.

In ordinary circumstances, both of you have the right to remain living in the matrimonial home until your financial claims against one another are resolved. However, in certain circumstances, one of the parties can apply for an Occupation Order. If the order is granted the court can:

  • Exclude one party from the family home, even if they are a joint owner.
  • Regulate the occupation of the home by either or both the parties, which means it can set times when you or your spouse (or both of you) can use the property and limit which parts of the home they can use.

  • Exclude a party from the entire home and an area around it. For example, the non- resident ex-partner is not allowed within 100 metres of the property.

  • For an application to be successful it must be against a respondent who is an ‘associated person’.

  • Associated persons are:

    • Someone to whom you are or have been married

    • Someone with whom you have or have had a civil partnership

    • Someone you have lived with as though you were married

    • Someone to whom you are or have been engaged (if the engagement has been terminated, the application must be within three years of the termination)

    • Someone who has lived in the same household as you, except an employee, tenant, lodger or boarder

    • Certain relations

    • Someone with whom you have had a personal intimate relationship for a significant amount of time

    • Someone who is the other parent of your child or who has parental responsibility for your child.

The first thing you’ll need to do is fill in the application form. You can see a copy and download the form here:

https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1117

The form asks for your:

  • Your name, address and date of birth. If you do not wish to reveal any contact details, complete Form C8:
    https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2216

  • The name and address of the person you are seeking the order against, the ‘respondent’.

  • If there are already family proceedings involving you and the other person, the name of the court and the case numbers, if known, and the type of case (for example, an application for residence of a child).

  • If there are criminal proceedings and the other person was arrested and charged, the name of the criminal court and case number if known, and the date of the hearing or trial.

  • If you are applying for an occupation order, in which you are asking the court to consider changing a rental or mortgage agreement, a copy of the agreement may help the court.

You’ll also need to write out a ‘witness statement’ and attach it to the form. This is your chance to explain what has happened and why you need the occupation order. Sign and date your witness statement and write ‘I believe that the facts stated in this witness statement are true’ at the bottom.

Send 3 copies of your application with copies of your witness statement attached to your nearest court.

You can find your local court at https://courttribunalfinder.service.gov.uk

They will arrange for a copy to be sent to your ex-partner. They will ask them to write their own witness statement.

The court will get in touch with a date for the court hearing. If you’re worried about being in court with your ex-partner, you can ask to have the hearing in separate rooms.

The court applies two tests to decide whether to grant the order:

  1. The balance of harm test – the court must make an order if it appears that the applicant or any relevant child is likely to suffer significant harm at the hand of the respondent if an order is not made.

    There are however exceptions to this test. If it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by them is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.

    In cases where it can be established that there is a significant risk to a child, the interests of the child will be the court’s main consideration.

  2. The core criteria test – the court can grant an occupation order having considered circumstances such as the below:

    1. the housing needs and resources of each of the parties and of any relevant child;

    2. the financial resources of each of the parties;

    3. the likely effect of any order, or of any decision by the court not to grant the order on the health, safety or well-being of the parties and of any relevant child; and

    4. the conduct of the parties in relation to each other and otherwise.

IN CASE OF EMERGENCY RELATING TO THE OCCUPATION OF THE FAMILY HOME

You can apply for an emergency order to be made. In section 3 of the form there is a box you can tick to flag the order as an emergency. If you ask for an emergency order you will need to explain in your witness statement that your ex-partner is likely to:

  • deliberately avoid or ignore the occupation order

  • physically harm you or your children; or

  • stop you from applying if you wait longer.

  • Your hearing will be held at your nearest family court. At the end of the hearing, the court will either decide:

    • that your ex-partner must promise to do or not do something - for example let you stay in the home

    • that they need more information – you might get a short-term order to protect you until you provide this information to issue an occupation order.

FINANCIAL RELIEF

Financial relief following the breakdown of a marriage is "ancillary" to the divorce proceedings. This means that when a divorce Petition is issued here, either party has the ability to apply for financial relief from the court. The English court will apply English law to the resolution of the financial issues, regardless of the nationality of the parties.

DURATION OF THE DIVORCE PROCEDURE

How long does it take to get divorced? Divorce is largely administrative process. Unless it is contested, which is unusual, the divorce process will take around 4-6 months. However, it is not uncommon to delay the Decree Absolute until financial matters have been resolved.

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