The first mention of the word ‘divorce’ can conjure up a number of questions and emotions for a husband or wife within a marriage.
How does the process work? What impact will it have on the children? Will I get blamed?
We at Maguire Family Law find that one of the most common questions asked is – how does the process start?
There is one ground for divorce in England and Wales – that the marriage has broken down irretrievably ie beyond repair and there is no way back. There are five ways of showing this and one of the following facts must be chosen: adultery, behaviour, desertion for two years or more, separation for two years or more with the other person’s consent or five years’ separation without the other person’s consent.
Once the petitioner (the party who starts the divorce) has decided upon the fact which they will rely on, the respondent (the party against whom the petition is filed) should be given notice of the intention to start divorce proceedings at least seven days in advance unless there are good reasons for not doing so. With this, the respondent should be provided with a copy of the fact(s) which the petitioner seeks to rely on so that they are aware of what is being said against them. This guidance is set out in the Law Society’s ‘pre-action protocol’ (paragraph 2.4.1) which is essentially a guide to best solicitors’ practice.
This is an important stage which should not be overlooked as it can often help to minimise the level of conflict thus reducing the possibility of the respondent choosing to defend the proceedings (which is extremely rare).
Sadly, however, we do not live in a perfect world and sometimes the ‘protocol’ is overlooked. So what are the consequences if it is ignored?
The issue of costs is always at the discretion of the Court, however, if the petitioner has included a claim for the respondent to pay or make a contribution towards their costs of the divorce (which they are entitled to do) but they or their solicitor have failed to adhere to the protocol, the respondent may challenge the claim and invite the Court to exercise its discretion on the basis that they did not have a fair and proper opportunity to consider the content of the petition before it was filed at Court.
This is but a small example of the issues which can arise in a divorce. If dealt with sensitively and properly and the good practice protocol is followed, the process can proceed smoothly with the level of conflict between the parties kept to a minimum.