Step 2: Starting the Divorce Proceedings?
Divorce proceedings can be started in any divorce county court or in the Principal Registry in London. Details of local county courts can be found in the phone book under “courts”. Divorce county courts are open on Monday to Friday, between 10am and 4pm.
To start the proceedings, the petitioner will need to complete a form D8 called a “divorce petition”. If they have children they will also need a form D8A a statement of arrangements for children. Copies of both are available here.
Once the petitioner has completed the divorce petition they will need to send it to the County Court or Principal Registry along with the following:
three copies of the divorce petition, being one for the Court, one for the Petitioner and one for the Respondent (the other spouse). A fourth copy will be needed as well if the petitioner is naming a third person in the case of adultery; and the original marriage certificate, or a certified copy of it. Photocopies are not acceptable and;a cheque for £300 payable to “Her Majesty’s Court Service” unless their financial circumstances mean they are exempt.
If there are children of the family, a statements of arrangements form, together with a copy for the respondent.
What follows is a long but comprehensive guide to completing the divorce petition. If you go through it step by step you shouldn’t have any problems with either completing the petition or understanding any petition which has been served on you. You may find it useful to print off copies of the forms to go through the following notes with.
In the guide we refer to the “Petitioner” and the “Respondent”. Remember the petitioner is the spouse who starts the divorce and therefore has to complete the paperwork, the respondent is the one being divorced.
Completing the divorce petition:
The divorce petition, like most legal documents, looks far more difficult then it actually is. However, it is vitally important that it is completed carefully and accurately. If the Court finds something wrong with the petition it will be returned and the petitioner will have to complete it and apply once again.
It is also important that before completing the petition the petitioner thinks carefully about what they are going to write. The whole point of doing it yourself is to do things as quickly and cheaply as possible. If the petitioner puts down allegations that they know are untrue or are going to wind the respondent up, this will only lead to delays and probably the involvement of solicitors in order to resolve matters.
“In the” – The petitioner must decide whether to start proceedings in the county court or the Principal Registry in London. If it is the county court enter the name of the Court in the space provided and put a line through “In the Principal Registry”.
“No” – This should be left blank. This will be completed by the Court when the petition is issued and will be the Court number which will be allocated to this particular divorce.
Paragraph 1 – The information needed to complete this paragraph will be found on the marriage certificate. The petitioner will need to give:
the date of the marriage;
the petitioner’s full name;
the respondent’s full name;
the place of he marriage. When giving the place of the marriage the petitioner should write the words, both printed and hand written, contained within the marriage certificate which come after the phrase “Marriage solemnised at”.
The information put onto the petition should be identical to that on the certificate and if not then any difference should be explained. If the petitioner or respondent have changed their names since the marriage took place then they must explain this by amending 1 (a) or 1 (b).
If you do not have a copy of the marriage certificate then if you were married in England or Wales you can get a copy from the office of the Registrar of Births, Deaths and Marriages for the district you were married (the address will be in the phone book) or from:
The Registrar General
ONS Southport
Smedley Hydro
Trafalgar Square
Birkdale
Southport PR8 2HH
Tel: 0151 471 4200
You cannot visit that office. You can only apply by post. You can however visit the office at the:
Office for National Statistics
Family Records Centre
1 Myddleton Street
London
EC16 1UW
Whichever method you choose you will have to pay a fee and they will want to know
the date and place of your marriage;
your full name; and
the full name of your husband or wife
Paragraph 2 – The petitioner will need to give the last address at which they lived with the respondent as husband and wife.
Paragraph 3 – This paragraph is concerned with showing that the Court has sufficient jurisdiction to deal with the divorce. This is perhaps the most complicated part of the petition just because of the wording that is used. Domicile is essentially a legal concept used to link an individual with a particular legal system. It is not to same as nationality. Habitually resident is essentially the same as ordinary residence, habitualjust means that it continues for an appreciable period. It is perhaps easiest to think of the question the Petitioner is being asked is, is your home, or the home of the respondent, in England and Wales?
There are six possible standard answers. The petitioner must choose one of these to enter into the petition.
“the petitioner and respondent are both habitually resident in England and Wales.”
“The petitioner and respondent were last habitually resident in England and Wales and the *[petitioner][respondent] still resides there.(*Delete as appropriate).
“The respondent is habitually resident in England and Wales.”
“The petitioner is habitually resident in England and Wales and has resided there for at least one year immediately prior to the presentation of this petition.” (The petitioner should also give the address(es) where they have lived during that time and the length of time lived at each address).
“The petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the presentation of the petition. “ (The petitioner should also give the address(es) where they have lived during that time and the length of time lived at each address).
“The petitioner and the respondent are both domiciled in England and Wales.”
If none of the above paragraphs seem to apply but the petitioner still believes that the court has jurisdiction to deal with the petition, the petitioner should cross out the words “The court has jurisdiction other than under Council Regulation on the basis that no Contracting State has jurisdiction under Article 2(1) of the Council Regulation and the *[petitioner][respondent] is domiciled in England and Wales on the date when the petition is issued.” (*Delete as appropriate).
Paragraph 4 – The petitioner is required to enter their present residence and that of the respondent. The addresses should be stated in full including the country. If either address is the same as that already stated in Paragraph 2, the petitioner should write the first line of the address followed by the word “aforesaid”. The occupation of both parties must also be given. If neither party work through choice then the petitioner can put “housewife” or “househusband”. If either party is out of work involuntarily then put “unemployed”.
There may be a reason why the petitioner does not want to put their current address on the divorce petition. In this case the petitioner must get the permission of the Court to leave it off the petition. If the petitioner does wish to do this then they should really seek the help of a solicitor.
Paragraph 5 – “child of the family” is any child who has been born to the petitioner and the respondent, or has been treated by them as though they had been born to them. This includes therefore step children and adopted children but not foster children. Although all living children of the family, no matter how old they are, must be named the Court’s primary concern will be with those:
Under 16; or
Between 16 and 18 and still at college or school full time.
If there are no children of the family the petitioner should cross out the word “except”. If there are any children of the family the petitioner should give:
their full names (including surname);
their date of birth and if they are over 18.
Where the child is over 16 but under 18, the petitioner should state if he or she is still at school or college, or is training for a trade or profession or vocation, or is working full time.
Paragraph 6 – If no other child has been born during the marriage the Petitioner should cross out the word “except”. If the Petitioner is the husband then they should cross out the word “petitioner” where it first appears in the paragraph but shouldn’t cross out the words in brackets. If the petitioner is the wife, they should cross out the word “respondent”, and cross out the words in brackets. If there is a child give:
the full name (including surname),
the date of birth and if they are over 18.
If there is a dispute as to whether or not a child mentioned is a child of the family this should be mentioned. For example, if the petitioner is the a husband and denies that he is the Father to a child, then that child’s name should be left out of Paragraph 5 and put instead in Paragraph 6 along with a statement that the petitioner denies that the child is a child of the family. If this is the case then legal advice should be sought.
Paragraph 7 – In this paragraph details must be given of all court proceedings in relation to:
the marriage;
any child of the family;
any property belonging to either the petitioner of the respondent.
Details will be required not only where an order was made but also of proceedings which were dismissed or adjourned. It is sometimes overlooked that if any children of the family have been adopted, details of the adoption proceedings must be given.
Where proceedings have taken place the petitioner should cross out the word “except” and give:
the name of the court in which they took place,
details of the order(s) which were made,
if the proceedings were about the marriage then if the petitioner and respondent resumed living together as husband and wife after the order was made this should be stated.
Paragraph 8 – If there have been any proceedings in the Child Support Agency concerning the maintenance of any child of the family, the Petitioner should cross out the word “except” and give:
The date of any application to the Agency
Details of the calculation made.
Paragraph 9 - It is quite unusual for there to be any proceedings relevant to this paragraph but the Court will want to know so they can decide, for example, whether their proceedings should be stayed until the other proceedings are completed. An example of relevant proceedings would be foreign divorce proceedings. If there are no relevant proceedings then the petitioner should cross out the word “except” otherwise the petitioner should give:
The name of the country and the court in which they are taking/have taken place.
The date the proceedings were begun and the names of the parties,
Details of the order(s) made,
If no order has yet been made then the date of any future hearing.
Paragraph 10 - If the petition is not based on five years separation then the petitioner should cross out this paragraph and renumber the subsequent paragraphs.
If the petition is based on five years separation but no agreement or arrangement has been made the petitioner should cross out the word “except”.
If the petition is based on five years separation and an agreement or arrangement has been made about maintenance either for him or her or for any child of the family or about family property then the petitioner should give full details.
Paragraph 11 – Unless the petitioner is applying for judicial separation this paragraph can be left just as it stands.
Paragraph 12 - In this paragraph the petitioner must give the reason why they feel the marriage has “irretrievably broken down”. As stated before this must be one of five possible reasons and the petitioner should write in the chosen reason using one of the standard paragraphs listed below:
“The respondent has committed adultery with a [man][woman] and the petitioner finds it intolerable to live with the respondent.
Or
“The respondent has committed adultery [with (give the name) ………. (called the co-respondent)] and the petitioner cannot reasonably be expected to live with the respondent.”
“The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”
“The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of this petition.”
“The parties to the marriage have lived apart for a continuous period of at least two years preceding the presentation of this petition and the respondent consents to a decree being granted.”
“The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.”
IMPORTANT !
The reason for the divorce is the one area of the petition where, unless treated with a little sensitivity, hackles can be raised and an otherwise straightforward procedure can descend into a bitter and costly legal battle. Divorce is of course an emotional process but the petition should not be used to settle old scores or drag someone’s name through the mud. For example, if alleging adultery, the petitioner does not have to name the other party if they do not wish to. If they chose to name them they should be aware that they might not only be causing the respondent and co-respondent to go on the defensive but they are adding a third person to proceedings who they will have to serve and involve in the divorce process leading to further delay and costs. Likewise, if the Petitioner is alleging unreasonable behaviour (and the majority of all petitioners do) they should exercise some discretion with the examples they give. If the petitioner and respondent are still on amicable terms they may wish to discuss what reasons will be given. Should the parties be on such amicable terms that there has been no unreasonable behaviour then they may be left will no alterative but to agree to put things on hold until they are two years separated.
It is a common misconception with divorce proceedings that if someone gets found “guilty” or admits to adultery or unreasonable behaviour that it will reflect negatively on them in some way this is not the case. To put it bluntly, when considering the petitioner’s application for divorce, the judge does not care who has done what and to whom. All he cares about is that it has happened in the first place and as a result led to the irretrievable breakdown of the marriage. The judge will not rely on any such admissions to decide what will happen to the children or what the financial settlement should be. Matters involving both the children and finances are kept quite separate from the dissolution of the marriage and are decided within quite separate applications.
Paragraph 13 – Particulars – This is the space provided for the petitioner to give details of the allegations which they are using to prove the facts given in Paragraph 12. Only brief details are required and usually just one or two sentences will do.
If the petitioner has alleged adultery they should give:
The date(s) and place(s) where the adultery took place;
If the adultery has taken place frequently over a period of time, the dates between which it was committed;
If the respondent and the other party to the adultery have been cohabiting, then the dates and places of the cohabitation should be given;
If there has been a child as a result of the adultery, this should be stated.
e.g. “The respondent has committed adultery with a woman who the petitioner has chosen not to name since September 2003. The respondent left the matrimonial home in January 2004 and is no co-habiting with the unnamed woman.”
If the petitioner alleges unreasonable behaviour then they should give:
Details of particular incidents, including dates. However, there is no need for the petitioner to give more than about half a dozen examples of the more serious incidents.
The general feeling is to put down the first, the worst and the last examples of behaviour. The petitioner should try and describe incidents in chronological order and should try and be precise with dates, but a long narrative is not required. The effect of the behaviour on the petitioner should also be stated and the petitioner may wish to include a general paragraph summarising the characteristics of the respondent’s behaviour.
e.g. “On October 2003 the petitioner found that the respondent had not been paying household bills but had taken money from their joint account and purchased a sports car. The petitioner felt cheated by this and also felt that she could no longer trust the respondent.”
If the petitioner is alleging desertion they should give:
The date and circumstances of the respondent’s departure in sufficient detail to show that the respondent intended to bring cohabitation to a permanent end.
The petitioner should also state that the petitioner did not consent to the respondent’s departure and gave them no cause to leave.
e.g. “The respondent left the matrimonial home on the 2nd January 2002. He had told the petitioner that he was going for a loaf of bread but did not return. The petitioner subsequently learnt that the respondent has moved into a flat at the aforementioned address.”
& (e) If the Petitioner alleges desertion they should give:
the date of separation,brief details of how the separation came about.
Where the parties have continued to live in the same house, sufficient information should be given to establish that they did maintain separate households under the same roof.
e.g. In cases of consensual separation the conventional wording is as follows:
“After unhappy matrimonial difficulties the petitioner and respondent separated on the…….day of ……….. 200 (at least two or five years before) and have not resumed cohabitation since that date.” In the case of five years separation the petition should also add “The respondent consents to the decree being granted.”
The Court understand that despite an incident which throws the marriage into difficulties, many couples will try and reconcile. Because of this the Court will not be unduly prejudicial if the couple have continued to live together following an incident of adultery or unreasonable behaviour. However, if the couple have lived together for more than 6 months following knowledge of the adultery the petitioner cannot rely upon adultery as a reason for the divorce (It could however be used as an example of unreasonable behaviour). In cases of unreasonable behaviour there is not a total bar on divorce if a couple continue to co-habit for a period of over 6 months following the last example of unreasonable behaviour, but a Court will take long periods of co-habitation into account when considering whether or not to grant the divorce.
Couples can still be separated even if they continue to live under the same roof, as long as they can show that they have in effect been living as two separate households.
If the reason for divorce is separation then if the parties co-habit for any length of time during that two or five year period then the time they live together must be added to the two or five year period. Therefore, for example, if they live together for a period of two weeks, they would not be able to apply for a divorce on the grounds of separation until they have waited two years and two weeks. If a couple co-habit for longer than 6 months then this breaks the continuity of separation and in effect, the countdown to divorce must start again.
The Prayer – This is the petitioner’s request to the Court. They should consider carefully the claims which they wish to make and, if necessary, adapt the prayer to suit their claims.
The suit - This is a standard prayer which takes the same form in all divorce petitions and so can left just as it is.
Costs – If the petitioner wishes to claim that the respondent or co-respondent pays their costs then they must do so in the petition. If the petitioner does wish to make a claim for costs then they should write in who they want to pay the costs so “respondent” or “co-respondent”, or both as appropriate. If the petitioner does not wish to claim costs then they may cross out this paragraph. Usually, a claim for costs will only be included where the petitioner has a certificate for Legal Representation or is paying privately for the services of their solicitor and even then only in the most exceptional of circumstances. The reason for this is because a prayer for costs is simply not worth the bother. It will aggravate the respondent and may lead, not only to their opposing the issue of costs but also to the granting of the divorce. Making a claim for costs is no guarantee that they will be paid as whether costs will be ordered is a matter for the discretion of the Court. Should the respondent’s behaviour be such at a later date that further costs are incurred i.e. they chose to defend the divorce then the prayer can always be amended however, an alternative, belts and braces approach is to word the prayer for costs as follows:
“The respondent may be ordered to pay the costs of this suit should the proceedings become defended.”
No order for costs can be made once the divorce is final.
Ancillary relief – Ancillary relief is the legal term which is used to describe the financial claims that a married person can pursue through the courts when applying for a divorce. At this stage the petitioner should cross out any of the orders they do not require. However, it is probably wise for the petitioner to leave all the options undeleted in the prayer at this stage. This is because, if the petitioner crosses out this paragraph, or any part of it and later changes their mind, they will have to make an application to the Court for permission for the prayer to be amended which takes time and money. Also, if the petitioner crosses any out and then decides to make an application after the divorce is finalised and they have remarried they will find that they are barred from doing so. Although no such measures extend to ancillary relief for children and applications can be made at any time, it is probably best to include an undeleted, full claim on their behalf at this stage as well.
Leaving these options open is doing just that and does not mean that the Petitioner will definitely be making such claims. The financial side of divorce (like any orders involving the children) is kept quite separate from the dissolution of the marriage and requires a completely separate application. Ancillary relief is not straight forward and although it is possible to proceed without the help of a solicitor it is certainly not recommended. If the party is not carefully they could find themselves losing out on what should rightfully be theirs and the divorce will cost them far more than they would have had to spend on legal fees. Ancillary relief is covered in more detail here.
Signature – The Petitioner must sign and date the petition. When doing so they should remember they are signing a legal document and therefore it is vitally important that what they have written is accurate and true to the best of their knowledge. If the petitioner has legal representation the solicitor will sign it on their behalf.
Names and addresses for service – The respondent’s address for service will be the last known address the petitioner has for them, unless the respondent is represented by solicitors who will accept service of the petition on their behalf, in which case their address should be inserted instead. If the petitioner has decided to name the third party involved in a petition on the grounds of adultery then their name and address should also be inserted as “co-respondent”. As a co-respondent the third party is entitled to be served with a copy of the petition and to defend the allegations and/or any claim for costs being made against them. The delay and costs that this could cause is a good reason for leaving their name out of the petition.
The back page – The petitioner should complete the back page using the information they put at the start of the petition. It requires the name of the county court, the full name of the petitioner and the respondent and finally an address for service of the petitioner. This is the address that all the relevant court documents will be sent and should be the same as in Paragraph 4 of the petition, unless the petitioner has solicitors acting for them, in which case it will be the solicitor’s address.
Completing the statements of arrangements for children:
If there are children of the family then this form must be completed by the petitioner and sent to the Court along with the petition. It is fairly straight forward and is only there so that the judge considering the petition knows that the children have at least been considered. If things are amicable then it is best that the petitioner and respondent complete this together. The judge will not make any orders to do with the children unless they feel it is absolutely necessary or they are asked to do so. The issue of the children’s welfare is far too important to be considered under “do it yourself” law and therefore should a party have concerns they should seek immediate legal advice. More information about Children and divorce can be found here.
Next Step - Step 3: Service of the Petition
38%
