In his latest legal insight, our Family & Matrimonial Associate, Ryan Elliott, discusses the current divorce procedure in Northern Ireland and addresses some FAQs for couples considering divorce.
I want a Divorce. What do I need to prove?
You must be married or in a civil partnership for at least two years before you can apply for a Divorce.
The crucial element is that the marriage or civil partnership has ‘broken down irretrievably’.
All Divorces in Northern Ireland are granted on one of the following five grounds:
- Two years’ separation with the consent of the other spouse/civil partner;
- Five years’ separation;
- Unreasonable behaviour;
- Adultery;
- Desertion.
You can rely upon more than one ground of Divorce.
The first two grounds are non-fault grounds and the other three are fault grounds.
You cannot apply for a Divorce within two years or within five years from the date of your separation if you are seeking to rely on those two non-fault grounds. You must wait until the relevant time has elapsed before the paperwork can be lodged with the court office.
You do not need to be living in separate properties to be considered as having separated. You can be considered separated from your spouse/civil partner even if you remain living in the same property or if you did so for a period of time after your date of separation. You must demonstrate that you maintained separate households under one roof throughout that time. This will be a matter for evidence and in most cases, both spouses/civil partners agree their date of separation.
A further consideration is the current arrangements for any minor children of the family. It must be satisfied that the welfare and needs of any children are being met under the current arrangements in place for the children. A Divorce Petition may be refused if the current arrangements are deemed inappropriate or deficient to the extent that the children’s welfare and needs are not being adequately met. This includes the children’s level of contact with the other parent.
Will I need to go to Court?
In Northern Ireland, one spouse/civil partner must lodge a Divorce Petition and other paperwork in the Matrimonial Office, a court office within the High Court of Justice. They are called the petitioner. If the paperwork is accepted by the court office, the stamped paperwork must be served on the other spouse/civil partner. They are called the respondent. The petitioner cannot personally serve the papers on the respondent. The respondent has 14 days from the date of service to lodge the completed Acknowledgment Form with the Matrimonial Office. The respondent must indicate if they are defending or not defending the Divorce Petition. If the petitioner is relying on one of the three fault grounds in their Divorce Petition, the respondent is entitled to lodge a Divorce Petition of their own, called a Cross-Petition, challenging the Divorce Petition and asserting their own reasons for the breakdown of the marriage. The petitioner is then given the opportunity to lodge formal Replies to the Cross-Petition. There are strict time limits for the completion of each stage of this procedure.
Regardless of the grounds for Divorce relied upon by either spouse/civil partner, all Divorces are ultimately listed for a Hearing before a Judge at a Courthouse.
In an undefended Divorce involving the non-fault grounds, the respondent is not required to attend the Hearing. The petitioner will give oral evidence to the Judge in a discreet and limited manner and that procedure is largely led by the Solicitor.
In a defended Divorce involving the fault grounds, the Hearing is listed at the High Court of Justice and both spouses/civil partners are required to attend in-person. The precise procedure will depend on the unique circumstances of the Petitions and whether or not an agreed way forward is possible. Only a very small number of Divorces lead to both spouses/civil partners giving evidence against each other in a courtroom.
Do I need a Solicitor for my Divorce?
Spouses and Civil Partners can represent themselves in Divorce. They are called ‘personal litigants’ or ‘litigants-in-person’.
However, the vast majority of spouses/civil partners are legally represented in Divorce proceedings and with good reason. Both the law and procedural requirements are complex and engaging a specialist lawyer will provide you with knowledge, advice, and expertise whilst supporting you throughout the emotional strain of these sensitive private family matters. The consequences of not obtaining expert legal representation in Divorce can be detrimental and life-changing.
What do I need to gather?
Your Solicitor should initially ask you for the following:
- Original marriage or civil partnership certificate (duplicate certified copies are available from the NI Direct website);
- Original birth certificates for any children of the family (again, duplicate certified copies are available from the NI Direct website)
- Medical reports and school reports if any of the children of the family have a disability or special educational needs;
- Any Court Orders concerning your marriage, property, or children of the family;
- Details of any ongoing or previous Social Services intervention with the family;
- Any documentary evidence which would support your chosen ground/s for Divorce.
If any certificates are not in the English language, these will need to be translated by a certified translations service and your Solicitor can arrange this for you.
How much does a Divorce cost?
The legal costs are not fixed. Your legal costs will ultimately depend on whether you are the petitioner or the respondent, whether the Divorce is being contested, whether the services of a barrister is necessary, how much time and work goes into the matter; and whether the Court makes any Costs Orders against you or your spouse.
If you are relying on one of the three fault grounds for Divorce, you can seek that the other spouse/civil partner pays your legal costs.
If you agree to Divorce on the ground of ‘two years’ separation with consent’ you will usually both pay 50% of the agreed costs of the Divorce Petition as raised by the Solicitor firm who completes the legal work.
If you are relying on the ground of ‘five years’ separation’, you cannot ordinarily seek that the other spouse/civil partner pays your legal costs.
If you receive a Divorce Petition in-person or via post and you do nothing, you run the risk that a Costs Order will be made against you and the Divorce will be granted on whichever grounds that your spouse/civil partner has relied upon.
It is important to note that if you secure a Court Order that your spouse/civil partner must pay all or some of your legal costs for the Divorce, you are still contractually responsible for paying your legal costs to your Solicitor firm as their client in the first instance. However, you would then be entitled to pursue recompense from your spouse/civil partner.
There are specific fees which must be paid to the Court Service for certain stages of a Divorce Petition and the total amount of these outlays will depend on whether any ‘interlocutory applications’ are necessary during the procedure, such as, applications to have service of the papers on the respondent deemed good. At the time of writing, these outlays amount to £748.00 in a straightforward undefended Divorce Petition. The professional legal fees, which you must pay to your Solicitor firm, are in addition to the outlays payable to the Court Service.
What about our property and finances?
If you want to ask a Court to consider and rule on the division of your matrimonial property and finances, you are required to lodge a separate application to the Court, called an application for ‘Ancillary Relief’. You can do this at the same time that the Divorce Petition is lodged or on a later date. The Divorce Petition is the first necessary step towards making such an application.
Quite often, but not always, spouses/civil partners agree with each other that they will Divorce on the ground of two years’ separation and that they will park the Divorce Petition until that ground becomes available to them. They then focus their attention on trying to agree the arrangements for their children and the division of their property and finances.
If a complete resolution is achieved on the property and finances, a detailed Settlement Agreement is prepared and entered into, which is ultimately presented to the Judge for approval at the Hearing of the Divorce Petition to follow.
If, upon the irretrievable breakdown of your marriage, you are concerned that your spouse/civil partner is taking steps to transfer property or money out of their name to keep such assets at arm’s length from you, you can apply to a Court for an emergency Court Order known as an Injunction.
How will I know when my divorce is finished?
After the Hearing of the Divorce Petition, a Court Order called a Decree Nisi gets issued. This Court Order records that the Divorce was granted, the date on which it was granted, the ground for the Divorce, and any Costs Orders made.
Six weeks after the Hearing, the Solicitor for the petitioner can apply for the final Court Order called the Decree Absolute, which completes the legal divorce process. The processing time is a further six weeks.
However, if there is an ongoing application before the Court regarding the matrimonial property and finances, those proceedings must finish before the Decree Absolute can be requested.
Whether you are the petitioner or the respondent, you should ensure that you receive both of these Court Orders for your records.
Is there anything else I need to think about?
Upon separation and upon the conclusion of the Divorce process, you should strongly consider making a new Will and Enduring Power of Attorney with a Solicitor specialising in this work.
At Cleaver Fulton Rankin, our Family & Matrimonial Solicitors are experts in Divorce Law and our Private Client Team can provide unrivalled advice and representation for all your personal legal matters.
This article has been produced for general information purposes and further advice should be sought from a professional advisor.
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