Even when a separation is amicable, receiving an application for Divorce can be a very distressing experience and it can be difficult to know what you should do next. This article cannot replace the need for specific advice on your case, but will look at some of the steps that are available after receiving an application for Divorce.

 

Have you received a draft Divorce Application?

If your spouse has a Solicitor, you should be forwarded a draft of the application first in-line with the Resolution Code of Conduct. This is to give you the opportunity to suggest changes to the application to help keep matters as amicable as possible going forward.

If you did not receive a draft first, do not worry as this can be addressed when acknowledging the application with the Court.

 

Are the contents of the Divorce Application correct?

Firstly, ensure that details such as names, dates of birth and addresses are all correct.

Secondly, carefully consider Parts 5 and 6 of the Application. This is where ‘The Facts’ and the ‘Statements of Case’ are noted. It is important to note that the law relating to divorce does not permit a no-fault divorce until a period of at least 2 years has expired since you stopped living together as husband and wife, at which point both spouses must also consent to the divorce. Consequently, in order to obtain a divorce sooner, couples have to rely on one of the fault-based facts: adultery or unreasonable behaviour.

It is more likely than not that your spouse will be relying on unreasonable behaviour. Therefore, it is essential to consider whether you are in agreement with the contents. Are the allegations correct or are they an inaccurate reflection of the reality of the situation? Could the allegations have a negative impact on any other proceedings or parts of your life?

Recent case law has identified that one party becoming “bored” of the marriage or feeling that the parties are no longer compatible are insufficient to establish irretrievable breakdown. However, alleged behaviour should be kept as non-contentious as possible, and only include as much information as is required to satisfy the Court’s criteria.

 

What are my options if I do not agree with the contents of the Divorce Application?

You could write to your spouse or their Solicitor and ask them to make amendments to the Divorce Application, outlining the points that you feel are inappropriate or inaccurate. You could also make suggestions of allegations that you feel are more appropriate. Even if the Divorce Application has already been issued by the Court, you can request that amendments are made. However, this will have cost implications for your spouse, in the form of a Court fee and their Solicitor’s costs, so they may not be willing to agree.

Alternatively, you could defend the application and file an ‘Answer’ and if appropriate a ‘Cross Application’ against your spouse (see below).

 

What about the Acknowledgement of Service Form?

When you receive an issued Divorce Application from the Court (i.e. not a draft), you should also receive an ‘Acknowledgement of Service’. This will ask you to confirm your receipt of the Divorce Application, on what date and address it was received, whether you agree that the Court has jurisdiction and whether you intend to defend the divorce.

If you plan to defend the divorce, you should send the Acknowledgement of Service to the Court within 8 days of receiving the Divorce Application, indicating your intention to do so. You then have a further 21 days to file an ‘Answer’, alongside the £245 Court fee.

It is impossible to offer overarching advice in an article such as this, as all divorce cases are unique. However, in many circumstances we advise our Clients to avoid defending a Divorce Application wherever possible, as this course of action is expensive for both parties, and very often simply delays the inevitable. If your reasons for wanting to defend the Divorce Application are deemed unmerited, you could also end up being responsible for your spouse’s costs as well as your own.

It is imperative to note that the Divorce Application itself will not affect any other aspects of your case i.e. arrangements involving children or the division of finances.

 

Who pays for the Divorce?

It is standard practice for an individual applying for divorce relying on adultery or unreasonable behaviour to claim their costs of the divorce proceedings back from the Respondent.

Whether or not you agree to contribute to the Applicant’s costs, it is advisable to write to your spouse or their Solicitor to ask them to confirm their costs. You may want to ask them to provide a ‘Schedule of Costs’ to establish whether they are reasonable. If your case is relatively straightforward, costs are unlikely to exceed 2 – 3 hours of work plus the £550 Court fee. Provided the costs appear reasonable, you could agree to meet all or half of their associated costs; this is something you can discuss with a Solicitor.

Alternatively, the ‘Acknowledgement of Service’ asks whether you agree to meet the Applicant’s costs. If you do object, then say so. It is good practice to say why you object, and a Solicitor can draft an appropriate response that is suited to the circumstances of your case.

If the issue of costs is not agreed on the Acknowledgement of Service form, then they will be determined by the Court.

 

What about arrangements for children and dividing our finances?

Arrangement for children and financial issues arising from divorce are considered entirely separate from divorce proceedings. Even if you are the Respondent in the divorce proceedings, this does not prevent you from putting forward suggestions in relation to child arrangements, or instigating financial negotiations. However, it is advisable to seek legal advice from a Solicitor before entering into these discussions, to ensure that you know what your options are.

For more information about our divorce process, visit our Divorce page.

What next?

If you have received an application for Divorce (whether in draft or not) and would like specialist matrimonial advice then please do not hesitate to contact a member of our Family team on family@franklins-sols.co.uk or 01604 828282 / 01908 660966. We offer consultations of 30 minutes at a cost of £150 plus VAT and would be happy to discuss your case with you.

Sometimes circumstances at home may not have been right for a while, however when a couple reach the decision to actually separate, this in itself is still a huge decision. Whilst the couple may have made the “emotional” decision to separate, many wonder what their legal position would be if they were to leave their property. This can in turn prevent parties from taking the next step and separate ‘physically’.

In this situation, we can assure you that whether the property is in joint names or in the sole name of one party; neither party can be forced to leave without a Court Order. In the meantime:

Once a party has left the property the remaining party will not want the other party coming and going as they please. From a legal standpoint they have a right to be there, but where possible it is best to try and reach an agreement as to when the absent party may attend the property, to collect their remaining belongings, for example.

It is important to try and obtain advice on the options available to you, as soon as possible after you have decided to separate. Once you know the legal position it may put your mind at rest more than you think; then you may feel able to take that all important next step in your separation. 

Visit our Family Law page for more information.

For more information or guidance please contact our Family Law team who will be happy to help on family@franklins-sols.co.uk or 01604 828282 / 01908 660966