Is it right that Single Joint Experts can do a poor job and then hold the parties to ransom over correcting their mistakes?

Vardags Solicitors are a Top Divorce Lawyer based in Central London that specialise in complex and substantial cases

Expert witness reports are often necessary in the course of proceedings to assist the Court in determining issues which require special expertise and usually where the parties are unable to agree those issues between them.  In financial proceedings, for instance, experts are regularly called upon to prepare reports to determine the value of real property and businesses.  In children’s cases, the Court may often direct that an expert psychologist assess and interview a family and prepare a report to assist in determining the most appropriate living arrangements for children in light of parental separation.

Part 25 of the Family Procedure Rules 2010 (“FPRs”) and the accompanying Practice Direction 25A set out the applicable rules and guidelines with respect to the appointment, duties and obligations of expert witnesses in family law Court proceedings.  Part 25 is reflective of Part 35 of the Civil Procedure Rules (“CPRs”) which was applied in respect of experts in family law proceedings until the FPRs came into effect in this jurisdiction on 6 April 2011.

Rule 25.7 of the FPRs sets out the Court’s power to direct that expert evidence be given by a “Single Joint Expert”; in other words, a single expert witness who is instructed jointly by the parties rather than each party instructing their own separate expert.  The fees of a Single Joint Expert are normally shared equally between the parties.

In the vast majority of cases the appointment of a Single Joint Expert will be the starting point for the determination of issues requiring expert evidence.  The introduction of the CPRs was intended to bring about the end of “trial by separate experts”, with Courts being under a duty to restrict the use of expert evidence.  Following the introduction of the CPRs, as a general principle the Courts have promoted the use of Single Joint Experts sought to resist parties to a case instructing their own experts.

However, it is arguable that the Court of Appeal decision of Daniels v Walker [2000] 1 WLR 1382 has significantly eroded the foundations of the general principle regarding Single Joint Experts.  In this case, the Court of Appeal stated that where there is a Single Joint Expert report, a party is not necessarily prevented from obtaining a further report from their own expert.  Subject to the Court’s discretion, a party should be given leave and permitted to obtain further a further expert report when they can satisfy the following criteria:

  1. The reasons for the party wanting a further report are legitimate rather than “fanciful”.  This is a broad test and the reasons do not need to be significant;
  2. The sums involved in the case are substantial and the issues are complex, or at least the cost of obtaining a further expert report will not be disproportionately expensive within the context of the case;
  3. The party has asked the Single Joint Expert address the issues of concern through appropriate questions, and this has not resolved the issues.

A party will normally be solely responsible for the fees of their own separate expert.

In light of the decision in Daniels v Walker, the instruction of a Single Joint Expert may be considered to be the first stage in a more extensive valuation process that can potentially develop over the course of litigation.

Yet does this mean that the continuing standard practice in family law proceedings of obtaining a report from a Single Joint Expert has been rendered obsolete and is now effectively a “waste of money”?  Furthermore, can the use of Single Joint Experts deliver a fair and just outcome?

Certainly the decision of the Court of Appeal may have encouraged parties to seek the appointment of their own experts, which in turn gives rise to the possibility of increased costs in the already expensive process of litigation.  Yet it would be a step too far to suggest that Single Joint Experts are now a simply a waste of time and money and produce unsatisfactory outcomes.

Firstly, the authority in Daniels v Walker is not a guarantee that a party may instruct their own separate expert whenever they choose.  The criteria set out by the Court of Appeal in that case must be satisfied, and most importantly, the decision to grant leave to party to obtain a further expert report remains within the discretion of the Court.  There will be many instances in which the Court will not grant permission as it considers further expert evidence to be unnecessary, inappropriate, or too expensive in the context of the case.

The primary basis of support for the continued use of Single Joint Experts by divorce lawyers on both sides, however, is that in a significant proportion of cases the parties will not seek to adduce further evidence from their own expert.  There are various reasons for this; for instance, both parties may be satisfied with the report of the Single Joint Expert and accordingly will have no reason to seek a “second opinion”.  Even where a party is somewhat dissatisfied with a Single Joint Expert report, they may dismiss the idea of seeking a further expert evidence on the basis that a more favourable report will not greatly affect the overall outcome of the case or the costs of obtaining further expert evidence will outweigh the potential advantages.  Frequently one party will be happier with a report of a Single Joint Expert than the other; however, the latter party will nonetheless be able to “live” with that report.

Further, an inherent risk of seeking a second expert report is that there is no guarantee their opinion will be favourable to the party instructing them.  There will often be a range of acceptable expert opinions in respect of an identical scenario (for instance, the potential market value of a property), and even a fundamentally flawed expert approach or methodology may still produce a similar result to that produced using the correct approach or methodology.  Single Joint Experts and separate experts alike have an overriding duty to the Court to provide an opinion that is entirely independent of either party.

It therefore follows that in most cases where neither party wishes to depart from the Single Joint Expert report and obtain a further expert report, it can be assumed that the use of the Single Joint Expert has indeed been effective in producing an outcome that is acceptable to the parties and therefore fair and “just”.  Overarching this is the likely cost saving advantage; usually the fees of a Single Joint Expert which are shared between the parties equally will be less overall than the fees of separate experts paid for by each party respectively.

Of course, it must not be forgotten that the use of Single Joint Experts represents an evolution of the law and procedure from a time when the use of separate experts was the norm.  A proliferation of experts within a case can significantly increase the time, costs and complexity of the issues at hand – and can also ultimately fail to assist the Court in making a decision and produce a result that is fair and just.  There are, one might suggest, sound reasons for the continued use of Single Joint Experts which have been developed over many years of litigation experience and history.

Finally, what might occur in a scenario where there is a Single Joint Expert and it has been identified that there are legitimate errors and other issues within their report?

Unless the Court directs otherwise, the Single Joint Expert will continue their role in the case and the parties will remain jointly and severally liable to pay the fees arising from the Single Joint Expert’s work – even if those fees are incurred by the Single Joint Expert in “rectifying” their initial report (for instance, after a party has raised questions of the expert).

If the parties are genuinely dissatisfied with the work and level of fees of the Single Joint Expert and cannot resolve these issues with the expert directly, they may seek to obtain appropriate relief outside the family law proceedings.

To find out more about Vardags Solicitors, visit their website.

20 of the best: family law blogs and news from the past week – March/April 2012

Below are 20 of the best family law blogs and news posts from around the web in the past week. If you have published or found a useful family law-related post that hasn’t been spotted, please do add a link to the comments section below.

Wanted: family justice narratives – Lucy Reed in the Guardian

Editor of the Pink Tape family law blog, Lucy Reed invites readers to share their experiences of working in the family justice system.

‘No good arguments against no fault divorce’, top judge says – Telegraph

Renewed calls for “no fault divorce” from Britain’s leading family law judge, Sir Nicholas Wall.

Launch of Family Law arbitration scheme marked by IFLA event – Family Law Week

On Monday 26 March 2012 the Institute of Family Law Arbitrators (IFLA) marked the launch of the new Family Law Arbitration Scheme.

Other blogs on the family law arbitration scheme:-

Family Law Arbitration in the UK – womeninlaw.com

Russell-Cooke welcomes the new Family Law Arbitration Scheme (26/03/12) – News – Russell-Cooke

Knights in shining armour? Family law arbitration rides to the rescue | jonesmyers blog

Lawrence v Gallagher [2012] EWCA Civ 394 – Family Law Week

The Court of Appeal has ruled in Lawrence v Gallagher that the division of assets in a civil partnership ‘divorce’ should be treated in a similar way to those in a heterosexual divorce.

More blogs on Lawrence v Gallagher:

Lawrence v Gallagher: Judicial creations should not be elevated to the status of s.25 criteria – Family Lore

Divorce principles to apply to civil partnership breakup – FLB

Court of Appeal cuts civil partnership ‘divorce’ settlement- Gregorian Emerson

Fifty years in family law: Staffordshire University Conference – Marilyn Stowe Blog

Marilyn visited the Staffordshire University Law School’s Annual Family Law Conference this weekend and produces a comprehensive account of the event.

New Rules for Families? – Cotswold Family Law

Discussion and comment on The Family Justice Review (“FJR”).

New family laws are divorced from reality – Tehelka

Flavia Agnes takes a look at India’s family laws in this opinion piece, noting that moves to make divorces easier may look good on paper but may end up giving a raw deal to women who are not financially independent.

Surge in demand for domestic abuse advice during Old Firm match – CBC Blog

Shelter Scotland has reported a sharp rise in the number of visits to its website from women looking for help and advice on domestic abuse following its recent Facebook advertising campaign.

Conflict and violence in families – Austin Lafferty

National charity, 4Children, has recently published the results of its research into conflict and violence in families.

You Can’t Always Get What You Want – Marshall Chambers

A lesson for litigants: answers provided by the Court may not be the answers desired by the litigant; or any of the litigants!

Rise in international child flee cases – Pannone Family Law Blog

There has been a significant rise in child abduction cases in England and Wales, as per a Report out this week by Lord Justice Thorpe, chief of the Office of the Head of International Family Justice.

Family Lore: Grubb v Grubb: “To be involved in ancillary relief litigation is a dire prospect for any husband or wife”

The report of Grubb v Grubb [2012] EWCA Civ 398, published on Bailii this week may be brief but it is not without interest. Family Lore comments.

Jennifer Brandt: Your First Meeting With A Divorce Lawyer

‘Getting a divorce is never a fun experience, but picking the right lawyer will help you cope with the process while getting a fair and equitable result’ says Jennifer Brandt. Her tips are blogged at the Huffington Post.

Mega-rich divorcees in court squabble over loose change | News.com.au

One from Australia: Having split the family’s $151,037,015 wealth with his ex-wife, a businessman realised he had overpaid and went to the Family Court to get his money back.

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For further family law updates, please follow our Twitter account: @FamilyBlawg.

‘Clare’s Law’- A change for the better for victims of domestic violence?

In October 2008, Clare Wood ended her relationship with George Appleton. Her rejection sparked a campaign of abuse, resulting in her horrific murder four months later. Appleton had a history of violence against women, including harassment, threats and kidnapping a former girlfriend at knifepoint.

Despite a number of complaints to the police, resulting in a panic button being fitted in her home, this was not enough to save Clare. Her murder made clear that the treatment of domestic crime requires improvement. This led to a government proposal, named ‘Clare’s Law’, enabling the police to disclose information to partners of those with histories of domestic violence.

The pilot scheme, announced on 5th March 2012, will begin this summer. It follows a government consultation published in October 2011 which investigated whether a national disclosure scheme could improve the safety of people in relationships with previous offenders. The initial consultation raised important issues, such as how much information should be released and in which circumstances, and how malicious requests will be avoided. The government seeks to address these matters during the scheme’s trial.

The pilot is testing two processes for disclosing information about a partner’s violent history; the first is triggered by a query from a member of the public (‘The Right To Ask’); the second is where police disclose information in order to protect a potential victim (‘The Right To Know’). Taking into account the amount of government and police time, and taxpayers’ money spent on this issue, it is important to consider the implications of this scheme.

Two people are killed by their partner each week in England and Wales; domestic violence is the cause of nearly 40 per cent of all female[1] UK homicides[2]. Evidently, government attention in this area is required, but is Clare’s Law the answer to reducing these figures? Refuge, one of the UK’s longest running domestic violence charities does not think so. The charity has criticised the proposed disclosure laws as ‘reactive rather than proactive’.

The theory behind the Government’s scheme is that if someone told that their partner has a history of domestic violence, they can then make an informed decision whether to continue with the relationship. This, however, raises many problems; if, like Clare Wood, a woman had no previous indication of her partner’s violent behaviour, then she would be unlikely to make an enquiry. Also, it is extremely doubtful that the scheme anticipates all those embarking on a new romance to carry out a police background check – it is simply unrealistic and doesn’t reflect reality.

Further, it is often on ending the relationship that people turn violent, as was the case with Wood and Appleton. Considering this, what is a woman to do when burdened with the information of her partner’s history? Many in such relationships stay with their partners out of fear for what would happen should they leave. Others might not leave because of love and belief that their partner can change. Would a woman be blamed for not leaving her partner when informed of his violent past?

The proposed ‘Right To Know’ process means police will inform potential victims of domestic violence. Statistics show that 44 per cent of victims are involved in more than one incident[3], so certainly many victims are already aware of what their partners are capable of, without being informed by the police. Knowing that their partners terrorised others before them would provide little solace.

Additionally, how would the police determine who they should inform? Appleton trawled social networking sites looking for his women. Are the police to follow these men from relationship to relationship, or message all their Facebook friends issuing warnings; for surely any one of them could be his potential victim. If a woman was able to escape an abusive relationship as a result of police disclosure, the perpetrator would simply be able to move onto his next victim. The problem is thereby displaced rather than prevented.

The police can only inform on the basis of information they have available: the details of those previously convicted. Considering that less than 40 per cent of domestic violence cases are reported to the police, a minor proportion of offenders will have police records, making it extremely unlikely for those making enquiries under ‘The Right To Know’ to obtain accurate information.

Having considered the implications of the proposed scheme, I think the most important thing is the way in which the police handle the disclosures. Potentially life-changing and life-threatening information is dangerous if unaccompanied by police support and intervention. Because the majority of cases go unreported, police time would be better spent conducting thorough investigations into allegations of abuse and monitoring those with troublesome histories. In a less than ideal world where prevention is impossible, protection should be key.

By Judy Benmayer of HighStreetLawyer.com

HighStreetLawyer offers advice in all areas of law, including Family Law problems.


[1] Although it is recognised that men also suffer from domestic violence, it is primarily an issue affecting women, (a third of domestic violence victims are men according to the National Centre for Domestic Violence). It is currently unclear whether Clare’s Law would apply to male and female victims, as so this article has been written from a female-centric perspective.

[2]  (Povey, (ed.), 2005; Home Office, 1999; Department of Health, 2005.)

[3] Dodd et al

What makes a top divorce lawyer?

Vardags Solicitors are a Top Divorce Lawyer  based in Central London that specialise in complex and substantial cases

Lawyers who specialise in divorce require skills and knowledge that are not often associated with commercial lawyers. Whilst skills such as communication, working as a team or working to deadlines are needed by any legal specialist, a lawyer dealing with relationship dissolution needs more than these attributes to cope with the challenging situations that may arise.

Understanding the complexities of adult relationships is key. A top lawyer must be capable of dealing with clients undergoing such emotional upheaval with dignity and respect. This will include being capable of appreciating significant factors in the divorce outside monetary issues, namely children who would be adversely affected by a drawn out adversarial litigation.

A divorce lawyer must accept that there are two halves to any divorce proceedings, and the desires of each party will likely conflict. Compromise will be necessary and that needs to be communicated to the client, whose vulnerable position may cloud their view of the situation. Many clients will come seeking to withhold everything from their former partner, motivated by spite or fear of losing what their earnings. The client needs to be reassured that they will be protected, and with competent legal professionals, each party should be left content. Total reluctance to negotiate with the other party will only lead to negative effects to any children involved, who have been shown to suffer as a result of the uncertainty and upheaval involved in divorce proceedings.

Expert knowledge of Family Law is an obvious requirement. The lawyer needs to be able to advise their clients about the existence of the “clean break” principle, the precedents set by cases such as White v White and other relevant case law, s.25 of the Matrimonial Causes Act 1973, and other legal principles which would affect the clients position in the event that the issue should come before a judge. Even before this, the top divorce lawyer will need to be able to convey the availability of alternative dispute resolution such as mediation or collaborative law, especially with the weight given to the ADR process by the government, the courts and organisations such as Resolution. Aside from being the cheaper option, ADR is often considered the more holistic method of dealing with a divorce, with financial, housing and custody issues being looked at as one complete issue.

It is important that the client has faith in their lawyer to do the best they can, to protect their interests and to provide the best legal advice. To ensure this the lawyer must show a determined and professional demeanour throughout the process.

The main issue to be dealt with by a lawyer dealing with divorce is turning a sensitive situation into something that the client is happy with and as a result the client will be able to move forward and build a better future. If a lawyer can do this, then they would be considered a top divorce lawyer.

10 of the best: family law blogs and news from last week

Below are ten of last week’s best family law blogs and news posts from around the web:-

The Attorney General has said that the current ban on gay and unmarried couples should remain in place until the Stormont Assembly decides otherwise.

Family Law Week presents Steve Crompton & David Kitson of RSM Tenon who review the Chancellor’s 2012 Budget announcements.

Refusal to allow a woman to adopt her same-sex partner’s child was not discriminatory according to The European Court of Human Rights’ ruling in the case of Gas and Dubois v. France.

Think-tank the Centre for Social Justice (CSJ) has accused the Government of missing a chance in its latest budget to tackle the problem of family breakdown.

Some of Wales’ most vulnerable children and young people are unaware of their statutory right to an independent professional ‘voice’.

Jordan Publishing has announced the return of the Family Law Awards, which will be held on 10 October 2012.

A recent study by FindLaw.com has revealed that March sees a spike in the number of divorce queries (although January is generally thought of as “Divorce Month” by divorce lawyers).

Mills & Reeve to launch an online know-how and training package for family lawyers.

Guest family law blog summarising the Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814.

Some doctors breaking the law by “pre-signing” abortion consent forms, the Government has said.

If you have published or found a useful family law-related post that hasn’t been spotted, please do add a link to the comments section below.

How to Divorce: The Divorce Process Explained

Below is a guest blawg post on how to divorce, explaining the divorce process. Please note that the terms are relevant to the laws of England and Wales. If you’d like to submit a guest family law blog post, please get in touch through the contact form.

Deciding to pursue a divorce can be a daunting challenge, fraught with a range of perils. There are a lot of things to consider, such how the divorce process works, what you’re entitled to and who gets the rights to any children you may have.

In order to get a divorce, you will have to undertake a range of steps in order to come to an agreement with your partner. These include your reasons for divorce, which of you will take care of the children and how you’ll split up your money, property and possessions.

One of the first ports when considering a divorce is hiring legal help. You may consider hiring divorce solicitors in Kent, or wherever you are based, who will act on your behalf in divorce proceedings.

The good news is that if you and your spouse agree on these points then the divorce process can be completed in as quickly as 4 months. If not, then divorce proceedings can drag on for much longer.

There are four formal stages to divorce in the UK:

  1. Establishing the grounds for divorce
  2. Filing a divorce petition
  3. Applying for ‘decree nisi’
  4. Getting a decree absolute

You can only divorce under UK law if your marriage has ‘irretrievably’ broken down and you have been married for a least a year. You will be required to prove this to the court by relaying the ‘facts’ of why your marriage has ended. These facts can include reasons such as adultery, unreasonable behaviour and desertion.

To start divorce proceedings you will need to fill out three copies of a D8 form, also known as a ‘divorce petition’. You will also have to pay a fee of £340, but you could be entitled to a discount if you have a low income or are on benefits. Once the forms are completed, you will need to send them to the court.

A notice of divorce will then eventually be served to your husband/wife. Your partner can then choose to either accept or argue against the divorce. If your spouse chooses to fight against the divorce then proceedings can be delayed significantly. If no agreement can be made then this is where divorce solicitors will step in to negotiate with your partner to try to reach an agreement.

Once you both agree on the divorce you can then apply for a ‘decree nisi’ – a document from the court which says that it can’t see any reason why you can’t divorce. A judge will consider whether there is enough evidence to allow the divorce to proceed and review all your paperwork, such as any arrangements you’re proposing for your children.

If the judge gives permission for the divorce to continue then you are able to apply for a ‘decree absolute’ 6 weeks after you have been issued with your decree nisi. Once you have the decree absolute, you are officially divorced.

Is relying on the integrity of a solicitor appropriate in Hildebrand cases? Is lodging documents with a third party solicitor the answer?

Vardags Solicitors are a Top Divorce Lawyer  based in Central London that specialise in complex and substantial cases

The Court of Appeal decision of Imerman v Tchenguiz [2010] 2 FLR 814 confirmed various principles, including but not limited to the following, in summary:

  1. The need to ensure full and frank disclosure in family law proceedings does not allow a party, or another person on their behalf, to breach the other party’s right to confidentiality of their documents / information.  Likewise, the process of disclosure does not entitle a person to breach the law (for instance, committing theft, or hacking into a person’s computer in order to obtain their confidential documents).
  2. It is an actionable breach of confidence for a party, without authority, to review confidential documents belonging to another person.  This is also the case where the party makes and retains copies of the confidential documents, or provides copies of those documents to a third party, or seeks to use the information contained in the confidential documents.
  3. In principle, spouses enjoy rights of confidence as against the other in respect of documents and information which would otherwise be confidential if they were not married.
  4. Confidence may be lost in respect of documents that are left out in the open in the matrimonial home (for instance, on the “shared desk”).
  5. For the reasons outlined above, “self-help” disclosure is not acceptable.  Where a party has concerns that the other party intends to conceal or dispose of assets, or destroy or conceal evidence, then there are remedies available to that party in the form of search and seize, freezing, preservation, and other similar orders.

If a party does have possession of confidential documents, they must promptly return those documents to the other party and destroy any copies they have made.  If the party is represented by solicitors, those solicitors must not look at the documents nor retain copies (or else they may be required to cease acting for their client).  In default of compliance, the aggrieved party will be able to seek appropriate injunctive relief with possible costs and other consequences.

However, there are corresponding obligations in respect of the owner of the confidential documents.  The breach of confidence does not override the obligation to make full and frank disclosure of all relevant documents within the family law proceedings.  If the owner of the confidential documents is represented by solicitors, those solicitors are obliged to take reasonable steps to consider and advise on the documents, with a view to ensuring that their client complies with their obligations of disclosure.  If the owner of the documents ceases to instruct their solicitors, then those solicitors are obliged to retain copies of the documents unless otherwise agreed or ordered.  These obligations are designed to ensure the preservation of the confidential documents, with a view to a party complying with their obligations of disclosure or alternatively the other party seeking the production of the documents by way of an application to the Court.

Clearly a great deal hinges upon the solicitors for each party doing the “right” thing and following the correct protocol.  Is it therefore appropriate to rely on the integrity of the solicitors who are obliged to retain the Imerman documents?

Unless there is significant and persuasive evidence to suggest otherwise, it must be assumed that the relevant solicitors will comply with their obligations to retain copies of the documents and advise their clients to make any relevant disclosure.  Solicitors are under strict professional and ethical obligations, and their duties to the Court extend beyond even their duties to their client.

This, however, may be of little comfort to the party who came across the confidential documents, particularly where the matter is fiercely contested as can often be the case in family law cases and associated litigation.

An alternative approach going forward might be to require that Imerman documents be lodged with independent third party solicitors.  This may provide the party returning the confidential documents with some peace of mind and ensure that the issue is dealt with, at least at first instance, by solicitors entirely independent of the parties and removed from the adversarial process.

However, one can also perceive some possible difficulties with this approach.  For instance, to what extent would the third party solicitor be involved in the process of reviewing, considering and advising on the relevance of the documents?  It may be that they are simply required to prepare a list of the confidential documents, but this in turn gives rise to further questions regarding the subsequent disclosure of that list and the appropriate procedure going forward.  Finally, the use of independent third party solicitors is likely to increase the costs of the case by some degree (which could be significant depending on the extent of their role) and will be even more problematic when the parties are self-represented or on legal aid.

An alternative to the use of independent third party solicitors might be for the confidential documents to be lodged with and considered by a Judge, who can then make appropriate directions.  This idea is also problematic for various reasons, not least because wide-spread use of such an approach might inundate the Court system with significant numbers of applications in respect of documents with little or no relevance to the case.

There is little doubt that the issue of Imerman documents and related procedure is and will continue to be fraught with difficulty – and many agree that greater direction and clarity is required to enable parties and practitioners alike to navigate this challenging legal obstacle course with greater confidence.

To find out more about Vardags Solicitors, visit their website.

Can I divorce my civil partner? (Legal Q&A)

Civil Partnerships are legal confirmations of relationships involving persons of the same sex. Ending a civil partnership is in many ways similar to ending a marriage, in the sense that the status afforded to each category of legal relationship is similar. However, the process of ending a civil partnership is commonly referred to as dissolution, not divorce.

As with a divorce, this process is best handled by an experienced family law solicitor, as a civil partnership entails the provision of similar rights over property and finance as a marriage and can have similar bearing on the ongoing care of any dependent children.

To get a civil partnership dissolved you’ll need to prove to a court the reasons why your relationship is no longer working. Your solicitor will ask you to evidence these as ‘supporting facts’ towards your case. To formally dissolve a civil partnership you must have been together for at least one year. As with divorce proceedings, you will need to demonstrate that your relationship has irretrievably broken down.

The four supporting facts acceptable for the dissolution of a civil partnership are:

  • Unreasonable behaviour by your civil partner
  • Absence from your home for more than two years, known as desertion
  • Separation for at least two years and agreement to the dissolution
  • Separation for at least five years if you cannot agree to the dissolution

Unreasonable behaviour is the most common grounds for dissolution and includes any behaviour which means that you cannot be expected to live with your partner any longer, for example physical or mental cruelty, abuse, irresponsibility with money or sexual infidelity. You will need to give sufficient detail on this behaviour, so be ready to supply dates when these incidents occurred. If the behaviour cited is over six months old, the court might decide it is not proven. In these circumstances you should consult your solicitor for legal advice.

If none of the grounds above apply, or you have not been in your civil partnership for more than a year, then you can apply for a legal separation instead.

The Divorce Process: Family Law Information

The Divorce Process

Divorce is the legal process through which two people end their marriage and the legal status that it provides. It is usually an extremely emotional time for the parties involved and also for their children, if they have any. The best way to make your divorce process as smooth as possible is to find a solicitor who you can trust and work comfortably with.

It is important that both parties understand their legal position on divorce and know exactly to what they are entitled. A divorce solicitor can make sure finances and property are properly distributed and arrangements are made for children, leaving no room for disagreements.

Petitioning for divorce

In order to begin the process of divorce one party to the marriage must present a petition for divorce on the grounds that the marriage has broken down irretrievably. It is important to note that the parties must have been married for at least a year before they are able to make such a petition.

Whether the marriage is broken down irretrievably is not simply a matter of opinion, and there is legislation stating that at least one of five factors must be present before any court will make a ruling that the marriage has in fact broken down irretrievably. These five grounds for divorce are as follows: unreasonable behaviour, adultery, living apart for two years and both parties consent to the divorce, living apart for five years, and desertion.

Acknowledgment of service

A copy of the petition must be sent to the other party along with a statement of arrangements for the children (if applicable) and an acknowledgment of service. The respondent must inform the petitioner in the acknowledgment of service whether they will be contesting the divorce. The acknowledgment of service is therefore an extremely important document as it shows the court that the other party is aware of the petition. If the other party refuses to return the acknowledgment of service you may have to arrange for a process server or bailiff to serve the document and make an affidavit stating that they have done so.

Decree nisi

If the court is satisfied that there are valid grounds for divorce it may well grant what is known as a decree nisi. A decree nisi will generally be granted when a divorce is not being contested and there are valid grounds for divorce. The party who made the petition must then apply to have the decree made absolute which they cannot do until at least six weeks and one day from the date of the decree nisi.

Decree absolute

The decree absolute is what actually ends the marriage, as opposed to the decree nisi which merely declares there are satisfactory grounds. Once the decree absolute has been pronounced the marriage has officially ended and usually the parties will begin ancillary relief proceedings: the name given for deciding how the matrimonial assets should be split.

Ancillary relief proceedings

The ancillary relief proceedings are often fiercely contested as a judge will rule on who should have what from the matrimonial assets. The ancillary relief process can be quite long and usually involves three trips to court.

  • A first appointment in which a judge outlines his position and ensures appropriate disclosure has taken place.
  • A financial dispute resolution hearing in which a judge (a different judge from who will be in attendance at the final hearing) will give an indication of what he would order in the hope the parties then settle on similar terms and avoid a final hearing.
  • A final hearing in which an order will be made.

With the potential for several court visits, it is in both parties’ interests to try to facilitate an early settlement to avoid significant legal costs.

My Spouse and I are looking to separate, however we do not wish to go through with the whole divorce procedure just yet, is there another way we can separate without going through this?

In Divorce Law the term divorce means that a marriage has been irretrievably broken down. It may be that in your situation this is not the case and you are not looking for a final decision but rather an agreement not to carry out your marital obligations or to benefit from your marriage in any way until you make a decision whether to officially divorce or not.

If this is the case you should write a separation agreement. A separation agreement is not a divorce; it is merely an order of court which dissolves the obligations or benefits brought on by a marriage. In such cases you and your spouse will agree beforehand about any financial agreements, the children and the planned divorce. This agreement is binding on you and your spouse until the divorce commences during which time the courts will make an order confirming the terms of the separation agreement.

If you are seeking to carry out a separation agreement, it is advisable that both you and your spouse employ the services if a divorce lawyer or family solicitor before agreeing to any of the terms you intend to set out in the agreement. The separation agreement identifies the parties to the agreement and confirms that both you and your spouse have received legal advice on the matter. Both parties will then agree in the separation agreement that the marriage has broken down irretrievably and that they are planning their divorce.

It is prudent at this stage to get legal advice on your division of your matrimonial assets, such as your finances and child support. This will make it easier for you to carry out an uncontested divorce when you wish to go through with the procedure. It should be noted however that a court may change your separation agreement if it considers it to be unreasonable or, in the case of a child, if it is not in the child’s best interests.

For further legal advice on divorce and separation agreements, you are advised to speak to a divorce solicitor or family law solicitor. They can answer your questions and help you to get through this difficult time.