The Beginning Of The End

For many of our clients, instructing us to begin divorce proceedings is the end of a process. You may have decided months or even years ago that your marriage was at an end. You have mentally prepared for this and now you just want a Decree Absolute in your hand and your finances sorted out overnight.

Other clients are under enormous pressure from their spouses to just accept this offer now. Otherwise the offer will be withdrawn and you’ll end up with nothing. I have only had one case, in thirty years, where one party left court with nothing. The reason for that was that they had access to a large sum of money and had already spent quite a bit of it before my client instructed me. We were able to persuade a judge that my client should now receive the balance.

So why does the divorce process take so long? Well, just talking about a divorce is not the same thing as issuing divorce proceedings. You must have your marriage certificate available, you must provide your solicitor with the reason for the divorce. Some clients are reticent about this, it can take them a while to agree the particulars that will be included in the petition. Others are quietly struggling, for all the alleged haste this is actually a huge emotional step to take. I might not hear back from a client for a few weeks. This is fine, I need to proceed at a pace that is comfortable for my client.

Once the Divorce Petition has been issued we are then in the hands of the court system; It can take some weeks for the court to issue proceedings. When we receive notice we also know that the Respondent will have received the documents. They must then complete their response. But are they working away, do they need to see a solicitor themselves, maybe they need some thinking time.

Until the Respondent sends back their documents to the court I cannot apply for Decree Nisi, unless I pursue the protracted process of Bailiff Service. Unfortunately because all of the courts are so short staffed any application takes weeks.

Decree Nisi is an important stage in the divorce process. A judge must confirm whether or not they will grant this. It takes weeks to obtain a Decree Nisi. In the meantime, whilst the divorce process has been trundling along you will have had the opportunity to try to reach agreement about your matrimonial finances. In some cases this can be done quickly. There may be limited assets, no children and an agreement in principle between you and your spouse. On the other hand there may be multiple assets. In some cases the matrimonial home is in the name of only one of you. I have had clients tell me that their spouse says they are entitled to nothing from the house because it’s not in their name. Or you will get nothing from my pension, it’s mine. Funnily enough, this type of thing has been going on for a long time and so somebody decided to pass the Matrimonial Causes Act of 1973. A nifty statute that we divorce lawyers have been referring to ever since.

The court must look at the needs of the parties and of any children of the family. It must take into account the income and earning capacity of the parties, the assets already owned etc. Nowhere in the act does it say that because the house is in Johnny’s name it is his to keep. Nowhere does it say that because a pension is in Karen’s name only that she can keep it all.

It can take quite some time to come up with the correct valuations for assets. Obtaining the Cash Equivalent Value of a pension can take up to 12 weeks. What about the value of a business?

This should be properly valued not just a guesstimate. This is a time consuming activity.

Debts must also be taken into account. How did they arise? Frequently I come across a situation where all of the debt is in one party’s name. This doesn’t really matter whilst you are happily married and doing everything for the family unit but if your marriage is at an end you do not want to be left with debt that was incurred for the benefit of all of you. Was the loan to improve the house, buy your spouse a car etc?

Once a deal has been agreed then, in order to protect you both from any further financial claims, a Consent Order should be drawn up. This sets out the terms of the agreement and must be supported by a financial summary. Not a made up summary, not any old figures. This is an important document that the judge will need to see in order to determine whether or not the agreement is fair. You are signing the document to say that it is the truth, if you lie the agreement can be set aside.

A Consent Order cannot be submitted to the court until after Decree Nisi has been granted. It is usual to wait until after a Consent Order has been sealed by the court before applying for Decree Absolute.

As you can see, there is a great deal to attend to. You need both patience and resilience to see the process through to the end especially if you are facing threats that you’ll get nothing