Information Sheet Regarding Grounds for Divorce and the Divorce Process
INFORMATION SHEET REGARDING GROUNDS FOR DIVORCE AND THE DIVORCE PROCESS
GROUNDS FOR DIVORCE
There is only one ground for divorce which is that the marriage has irretrievably broken down. To prove this the Petitioner (ie the one issuing the divorce) must rely on one of five grounds:
- Adultery
- Unreasonable Behaviour
- Desertion (for two years)
- Two Years’ Separation with the other party’s consent to the divorce
- Five Years’ Separation without the other party’s consent to the divorce
The most common fact relied upon in divorce proceedings is Unreasonable Behaviour. It is what the Petitioner finds unreasonable as opposed to what the average person might consider unreasonable. It can encompass virtually anything and for these reasons it is very difficult to defend a petition presented on this basis.
If a petition is presented on the basis of two years’ separation then the consent of the spouse is needed to proceed.
The other spouse’s consent is not however needed to petition on the grounds of five years’ separation.
It is not always necessary to have been living in separate houses throughout the period of separation. The courts will accept petitions on the basis of two or five years separation where the parties have lived together in this period provided they can prove that they have been living separate lives albeit under the same roof. This means showing that you have slept separately and undertaken each of your own washing cooking and other chores for example.
ACKNOWLEDGMENT OF SERVICE FORM
Once the divorce petition is issued by the Court the Respondent will be sent a copy of the petition together with an Acknowledgment of Service Form which the Respondent has to complete.
The Respondent has 7 days to return this to the Court completed and signed.
If the Respondent does not do this then the Petitioner will consider whether to apply for the Court Bailiff’s to personally serve the Petition on the Respondent.
DECREE NISI
Once the Acknowledgment of Service Form is filed at Court, the Petitioner then applies for the Decree Nisi and will set a date for the Decree Nisi hearing. The Court will issue a Certificate of Entitlement to a Decree to both parties notifying them as to when the hearing will take place.
At the hearing the Judge has to satisfy himself that on the papers before him the divorce can be granted. The Judge will then pronounce the Decree Nisi. This does not mean that the parties are divorced at this time. Nisi is Latin for “almost” so it means that the parties are almost divorced.
It is at the Decree Nisi hearing that the Judge will make an order as to whether the Respondent should pay a contribution towards the Petitioner’s legal costs. If this issue has not been agreed by that point then both parties should attend the decree nisi earing to make their submissions to the Court on the question of costs. If the parties have agreed the costs by the date of the Decree Nisi Hearing then there is usually no need for the parties to attend.
Once the Decree Nisi has been pronounced the Court then has the power to make a court order relating to the financial settlement.
DECREE ABSOLUTE
The Petitioner can apply for the Decree Absolute six weeks and one day after the Decree Nisi has been pronounced. The parties are not full and finally divorce until the Decree Absolute has been granted by the Court.
If the Petitioner does not apply for the Decree Absolute then the Respondent can apply three months after the expiry of the date on which the Petitioner could have applied for it (ie three months after the six weeks and a day period has passed).
In exceptional circumstances the Court may order that the Decree Nisi be “stayed” ie suspended or that the application for Decree Absolute be delayed. The Court has a discretionary power to delay or stay an application for Decree Absolute but that power should only be exercised if a party is able to establish special or exceptional circumstances such as suffering a financial or other disadvantage.