Step 5: Application for Directions
Once the respondent (and any co-respondent) has returned their acknowledgement of service and it is clear that they do not intend to defend the divorce then Court can finally be asked by the petitioner whether:
They have grounds for a divorce; and
If the arrangements proposed for any children are satisfactory.
This process is called “applying for directions for trial.”
Applying for directions for trial:
When applying for directions the petitioner is in effect asking the judge to check through the papers submitted and, if he is satisfied, move the divorce onto the next stage by entering it into the “special procedure” list. The Court will not do this automatically and the petitioner will have to make a written application asking it to do so. Thankfully the procedure for doing so, though a little time consuming, is quite straightforward.
To achieve this, the petitioner will need copies of form D84 (application for directions for trial) and form D80 (affidavit of evidence). Both of these are to be filed at the Court by the petitioner at the same time.
The Petitioner will also need to file with the Court evidence that the respondent (and any co-respondent) has received the petition and if necessary statements of arrangements and that they do not intend to defend the divorce and consent to the divorce if required to do so. This evidence is usually in the form of the completed and signed acknowledgement of service and statement of arrangements previously returned to the Court by the respondent.
Completing the application for directions for trial:
The application for directions for trial is extremely simple and is a matter of filing in the blanks. The petitioner merely has to ensure they have completed:
the name of the County Court where proceedings are taking place;
the full names of all the parties involved (petitioner, respondent and any co-respondent); and finally
the full name of the petitioner making the application.
The petitioner should sign and date the form and put a line through where it says [Solicitor for].
Completing the affidavit of evidence:
The affidavit of evidence is slightly more complicated but again, it is vitally important that its contents are accurate and correct. This form serves as a statement and is the petitioner’s evidence to support their application for divorce. There are five different versions of the affidavits of evidence, each one relating to one of the different grounds for divorce, therefore it is important that the petitioner completes the right one. The questions for each one differ slightly to ensure that the judge can be certain the relevant grounds for divorce have been met.
D80A – Adultery
D80B – Unreasonable behaviour
D80C – 2 years separation with consent
D80D – 2 years desertion
D80E – 5 years desertion
The affidavit requires the petitioner to swear that everything stated in the petition is true. Therefore if there are any errors in the petition now is the time to amend them. The petitioner should note down in the appropriate box on the affidavit details of, for example, misspelled names or incorrect dates of birth. The judge will then be able to treat the petition as being amended without having to reserve the amended petition on the relevant parties.
If the alterations required are more serious e.g. if the petitioner wishes to add an allegation if unreasonable behaviour, these should not be written in the affidavit but instead the petitioner will have to make an application to the Court for permission to amend the petition, which will then have to be reserved on the respondent and any co-respondent before the petitioner is able to apply for directions. Unless the petitioner feels that such amendments are really necessary this step should really be avoided.
Some of the questions on the affidavit relate to periods of co-habitation and living arrangements. These questions must be answered very carefully by the petitioner because if the Courts believe there has been co-habitation in excess of 6 months since the last allegation of adultery, unreasonable behaviour or separation/desertion it may refuse to grant the divorce. If the petitioner and respondent are still living together at the time that the affidavit is completed then the petitioner should good reason for this in case it raises doubts in the district judge’s mind as to whether the marriage has really broken down.
If the petitioner is relying on separation or desertion as a grounds for divorce and both they and the respondent are still living together at the time the affidavit is completed, then they should make it very clear that the parties were living as two separate households but under the same roof (e.g. giving details of which rooms were used by which party, whether meals were shared, washing done by one for the other etc.)
The affidavit also offers the petitioner another chance to confirm whether or not they wish to seek costs against the respondent. If the respondent has objected to the paying of costs in their acknowledgement of service then the petitioner should it make it clear whether or not they still wish to pursue a claim for costs in spite of the respondent’s objections. It will also assist the Court if the petitioner can give any specific reasons to support the claim and to refute any objections made by the respondent. Clarification is required to minimise delay in the processing of the application, if things aren’t clear the district judge may have to seek clarification from the parties before things can proceed.
The signing of the affidavit of evidence:
The affidavit is a statement which the petitioner can only sign in front of a person approved to witness it. Without an approved witness the affidavit is invalid. The final page of the affidavit should therefore be left unsigned until it is brought before an appropriate witness.
An affidavit can be witnessed by:
An office of a county court or of the Principal Registry, or
A solicitor.
The Petitioner should be aware that although a solicitor will make a small charge for witnessing the affidavit (usually about £7.50) an officer of the court of the Principal Registry will witness the affidavit for free. They will simply have to take the affidavit and application for directions along to the family department of the County Court.
When the Petitioner goes to sign the affidavit in front of the witness they must not forget to take with them a copy of the acknowledgment of service and a statement of arrangements for children. The acknowledgement of service should be marked by the Petitioner “Exhibit A” and the statement of arrangements should be marked “Exhibit C”. They will then be asked to sign the affidavit confirming that the signatures on both of these documents belong to the respondent.
Once witnessed, the following documents need to be filed at the Court:
application for directions,
affidavit of evidence
all supporting documents, e.g. acknowledgment of service and statement of arrangements for children.
These will then be placed before the judge along with the case file, who will consider the petition and affidavit as well as the respondent’s acknowledgement of service and the statement of arrangements for children. They will then decide if the petitioner can have a divorce.
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