A short guide to the legal and court procedures that might be encountered in a typical divorce case in Northern ireland
Divorce proceedings can prove emotionally and financially draining and certainly the first step in any case involving a marriage breakdown is to decide whether issuing divorce proceedings is the appropriate remedy. It is wise to remember that nullity and judicial separation proceedings are alternatives in certain circumstances.
Divorce law has two basic objectives. Firstly, it allows for the dignified dissolution of those marriages which have irretrievably broken down. Secondly, it deals with arrangements for the future support children of the family and the distribution of capital assets and income between the parties.
Legal Aid Funding
Legal aid may be available to issue divorce proceedings. If you are eligible we can make an application on your behalf, but you should be aware that Legal Aid applications in relation to divorce proceedings do take quite some time, often six months or more to process and the statutory charge will apply if you recover or preserve property/money or other assets at the end of your case. In these circumstances, legal aid effectively operates as a loan to cover the costs of issuing the appropriate proceedings that you will have to pay back.
Grounds For Divorce
It is necessary to establish you have grounds to proceed with divorce. In order to obtain a divorce in Northern Ireland you must establish that the marriage has irretrievably broken down. A petitioner must prove in evidence that there is no prospect of a reconciliation between the parties and this must be established by proving at least one of the following facts: 1) Adultery
4)Living Apart for Two Years (and the Respondent consents to the divorce)
5)Living Apart for Five Years
Having initially consulted with you, we will advise on which ground(s) are available to you and indeed which would be the most appropriate in your particular circumstances
Drafting Your Petition and Other Papers
If your divorce is to be listed, we will draft your divorce petition and all the other appropriate papers needed to issue proceedings. At this stage, you should gather together documents such as your original marriage certificate, your child(ren)’s long form birth certificate(s) and copies of any previous orders granted, as we are required to lodge these with the Matrimonial Office. If there are children of the marriage we will also require you to complete a Statement of Arrangements for Children Form. This form must be completed if there are any children involved in the marriage, including stepchildren or a child who was or is treated as a child of the family. A further consultation may be necessary for your approval of the petition before all papers are sent for issue in the Matrimonial Office.
Filing or “issuing” the Petition
All completed divorce papers are then lodged with the Matrimonial Office, accompanied by supporting documentation, e.g. marriage and birth certificates.The petition must be also be accompanied by the appropriate fee or legal certificate. The fee is currently £150 for County Court proceedings and £200 for the High Court. The Matrimonial Office will assess the stamp duty on the petition and on the sealed and certified copies required for service. The papers are then stamped by the Stamp Office and returned to the Matrimonial Office who will then record and return all papers to us for service upon the (Co) Respondent(s).
Service upon the Respondent
The Respondent along with any named Co-Respondents (in the case of adultery) will then be served with all papers by recorded delivery.He/she will then have 14 days to return form M6 Acknowledge of Service to the Matrimonial Office. If the (Co) Respondent wishes to contest the petition this must be indicated on the returned Form M6, supported by a cross-petition, stating his or her answer to the matters alleged by the petitioner. If the Acknowledgement of Service is not returned by the Respondent we may apply for leave to have served deemed good.This is only an option however in cases where the Respondent’s consent is not essential.
Certificate of Readiness
Once the parties are ready to proceed a certificate of readiness (Form M8) is filed and the case is listed for trial. If a contested divorce, following an exchange of pleadings a full hearing takes place in open court with each party calling witnesses and being subject to examination and cross-examination. In the case of an uncontested divorce, the petitioner only need attend and the hearing will be relatively short.
Decree Nisi Granted
If satisfied from the evidence presented that the marriage has irretrievably broken down and there are no other issues outstanding, the judge will then issue a decree nisi.
Decree Absolute Granted
The decree absolute is granted by the court in response to an application from the petitioner not less than six weeks after the issue of the decree nisi, or an application by the respondent at least three months after the event.This period is necessary for any party to show why the divorce should not be finalised.
Effect of Divorce
Most obviously, having been granted the decree absolute, you are free to re-marry. However under the current legislation, the dissolution of the marriage will have certain implications regarding your entitlements to inherit under your former spouse’s will and pension/s.