Coles Miller DIY Divorce Pack
The Coles Miller DIY Divorce Pack has been developed to assist clients who do not wish to have solicitors deal with their divorce officially with the Court, but to deal with that aspect of their case themselves. It is designed to provide expert support and assistance in completing the various Court forms that are required as part of any undefended divorce proceedings.
The necessary paperwork can sometimes be complicated and must be accurate and complete in order for proceedings to go through smoothly and our support service aims to highlight any concerns over the drafting of paperwork you produce with a view to cutting down on delay and difficulties in the process.
The process includes checking all the standard paperwork from divorce petition to decree absolute application for an undefended divorce. The forms themselves can be downloaded from the Court Service websitewww.hmcourts-service.gov.uk free of charge.
WHAT WILL YOU PAY?
The total fee is £200 including VAT. The payment is made at the start of your case and will cover advice on your drafting of the petition, statement of arrangements for children (if required), application for directions for trial and affidavit in support and decree absolute application.
As far as the other costs of proceedings go, you will normally be required by the Court service to pay £340 to issue proceedings and £45 to apply for decree absolute – but if you are in receipt of a low income you may be eligible to seek a reduction or exemption from the fee using the forms available from the Court website above. You may have to obtain a further marriage certificate if you do not have one which currently costs £9, and you may have to pay a swearing fee as part of the case, which attracts a fee of normally £7 to £9 (although this service is provided free of charge by the Court Service)
WHAT WORK IS COVERED?
We will review your drafted forms which you can either e mail, fax or post to us. We will advise you of any parts of the forms that need to be changed and suggest to you how they might be improved to enable the smooth process of your case from issue to decree absolute.
Should the matter become more complex, for example your spouse defends the proceedings or files a Cross Petition (seeking a cross divorce against you), we can of course advise you upon that, but costs will then fall to be charged on our normal hourly rate which ranges from £150- 180 per hour. You will only incur additional charges if you ask us to continue to assist you, or go on record with the Court as acting for you.
WHAT WORK IS NOT COVERED?
- Any work that is necessary if the Petition becomes defended, or needs to be altered (amended) once it has been issued by the Court.
- Other complications including applications to proceed by bailiff or substituted service where the other party to the divorce does not complete the acknowledgment of service form
- The cost of swearing the affidavit in support of the Petition (between £5.00-£9.00).
- The fee for obtaining a copy marriage certificate (£9.00)
- Any advice and proceedings concerning property, finances and children.
- Taking over conduct of the divorce proceedings for you at any time.
- Enforcement of any orders including costs orders
- Attendance at court
- Work for withdrawal of proceedings at any stage
We are of course happy to provide assistance with any of the matters arising above but the charges of those aspects will fall outside this pack and will be discussed with you directly at the time bearing in mind your individual requirements and the circumstances of your case.
HOW WILL ANY SUBSEQUENT PROCEEDINGS RELATING TO YOUR PROPERTY OR ANY CHILDREN BE PAID FOR?
The financial aspects of your divorce and any issues concerning your children will need to be addressed, and are not covered by this pack. Any fees incurred will be will be charged at our usual hourly rate which ranges from £150- £180 plus VAT. We are usually able to give you a clear indication of the likely costs involved. Again we will only carry out this work if you ask us to do so.
IS YOUR SPOUSE LIABLE FOR YOUR COSTS?
During divorce proceedings, you can ask for a Court Order that your spouse contributes to the costs of the divorce. This may cover some or all of the fees you incur under this plan.
WHAT IS THE NEXT STEP?
Please read the next section headed “Divorce Procedure”. This has been produced by Resolution and explains the various grounds on which a divorce petition can be filed.
If you would like to proceed with us, please complete and return the attached Instruction Sheet and your payment £200 and a copy of your marriage certificate. We will then open a file and await receipt of the first drafted forms from you. We will also need to receive identity evidence from you if we have not already received it and this includes one photographic identity document such as passport or driving licence and one address document such as a bank statement or utility bill. Please ask us for further information on this if you require it.
HERE TO HELP AND SUPPORT YOU
If at any time during the course of your case you decide that you would prefer to have solicitors acting for you, we can help. We can take over conduct of your case upon receipt of all the papers from you and can from that point deal with all the preparation of papers as required and attend hearings with you to speak on your behalf. We ask you to provide full information and as much notice as possible of this change to your matter and we will in return provide you with prompt advice on the situation and an estimate of the charges for the work you have asked us to carry out.
We can help with services including making a will and property transactions which are often required at the end of a case, just ask us for further information.
FREQUENTLY ASKED QUESTIONS AND PROCEDURE
A guide by Resolution the specialist family lawyers organisation
Divorce is a legal process, which is carried out by the civil courts. The procedure begins with a petition and ends with a decree absolute, which dissolves the marriage. The timescale to complete the process differs from case to case. Separate but related issues arising from divorce that need to be resolved often include practical arrangements for the care of any children and future financial arrangements between the couple concerned. Those issues may in practice take precedence over the actual divorce itself.
1. WHEN CAN A DIVORCE PETITION BE ISSUED?
You cannot issue a divorce petition unless you have been married for more than one year. Although it does not matter where you were married, it does matter where you and/or your spouse are living at the time the petition is issued. The issue of where you or your spouse normally live or connections you have abroad may have to be considered by the courts, to determine whether a court has authority to deal with a particular divorce (known as ‘the court’s jurisdiction’). These matters, known as domicile and residence, can be complex.
2. WILL MY MARRIAGE CERTIFICATE BE REQUIRED?
Yes. Your divorce petition needs to be accompanied by either your original or an official copy of your marriage certificate. A photocopy is not sufficient. If you were married in England or Wales, you can easily obtain an official copy of your marriage certificate from the office of the Registrar of Births, Deaths and Marriages for the district in which you were married. The court does not return your marriage certificate at the conclusion of the divorce. Different formalities apply where you were married abroad.
3. ON WHAT GROUND CAN A DIVORCE PETITION BE ISSUED?
The only ground for divorce is that the marriage has irretrievably broken down. This is proved by establishing the existence of one of five factual circumstances. These are:-
(a) Your spouse has committed adultery and you find it intolerable to continue to live with him/her.
(b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue live with him/her.
(c) Your spouse has deserted you for a continuous period of two years or more.
(d) You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.
(e) You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.
It is no longer compulsory in a petition based on adultery to name the third person concerned.
4. DOES THE BASIS OF THE DIVORCE HAVE TO BE AGREED?
No. However, it might be a good idea for you or your solicitor to establish whether or not there is likely to be any opposition to the petition before it is actually issued at court. As a matter of good practice, a draft of a petition based on behaviour should usually be sent to the other spouse concerned so that an agreement can be reached over the particulars to be cited.
5. WHAT INFORMATION DOES THE DIVORCE PETITION CONTAIN?
The petition is a standard court form. It contains basic information about the names and addresses of the couple concerned, details of any children and a statement that the marriage has irretrievably broken down. It will also state the basis of the petition, such as adultery or behaviour. The contents of the petition must be true.
The petition concludes with a section known as the ‘prayer’ which sets out what is actually being sought. It therefore includes a request that the marriage be dissolved and may also include a request for the other spouse to pay some, or all, of the costs of the divorce. In addition, a request is usually made for an order for financial provision to be made by the court (known as ‘ancillary relief’).
6. WHAT DETAILS ARE GIVEN ABOUT ANY CHILDREN?
A standard court form accompanies the divorce petition which outlines the current and proposed arrangements for any children of the family under the age of 16 or between 16 and 18 but still in secondary education. This includes details such as where and with whom the children live, which schools they attend, who looks after them and how often they see the other parent. This is known as a ‘statement of arrangements’. The law encourages couples to reach an agreement over future arrangements for their children without the need for a court to become involved. As a matter of good practice the statement of arrangements should be sent to the other parent for agreement before the divorce petition is issued.
7. WILL I NEED TO ATTEND COURT?
You will usually only need to attend a hearing dealing with the divorce if the proceedings are contested. You may have to attend court if you or your spouse are unable to agree arrangements for your children or for financial provision.
8. ARE THE DIVORCE PROCEEDINGS HELD IN PUBLIC?
Court proceedings in family law are usually held in private. The press are able to publish the fact that a decree nisi of divorce has been pronounced. The information that they may disclose is, however, essentially limited to the names of the couple and the basis upon which the divorce was granted but, in the case of adultery or behaviour, not the actual details themselves.
9. WHEN ARE FINANCIAL ISSUES DEALT WITH?
Negotiations in relation to financial arrangements for the future can take place at any time before, during or after the divorce. It is usually not necessary for negotiations to have been completed before the divorce can be finalised. Particular issues, such as maintenance, may need to be resolved in advance of an overall settlement being reached.
10. WHEN WILL I BE ABLE TO REMARRY?
Neither party to the marriage is free to remarry until the final decree of divorce has been made (known as the ‘decree absolute’).
11. TIMETABLE
11.1. ISSUE OF THE PETITION
The spouse who starts the divorce is known as the ‘Petitioner’. The other spouse is known as the ‘Respondent’. If a third person is named in a petition based on adultery, that person is known as the ‘Co-Respondent’. The divorce starts when the following papers are sent to the court:-
(a) Divorce petition.
(b) Statement of arrangements for any children.
(c) Statement as to advice given on reconciliation.
(d) Marriage certificate.
(e) Court fee (unless the Petitioner is exempt from paying such fees).
11.2. WHAT HAPPENS NEXT?
The court or the Petitioner’s solicitor sends by post a copy of the petition and any statement of arrangements to the Respondent, together with a form of acknowledgement for him/her to complete (known as the ‘acknowledgement of service’). A copy of the petition (but not any statement of arrangements) is also sent to any Co-Respondent. If the Respondent/Co-Respondent is represented by solicitors, the divorce papers are usually sent directly to them.
11.3. WHAT MUST THE RESPONDENT DO ONCE HE/SHE RECEIVES THE DIVORCE PAPERS?
The Respondent must complete and return to the court the acknowledgement of service within eight days of receipt of the divorce papers. The form asks the Respondent whether he/she:-
(i) Agrees with the basis of the court’s jurisdiction.
(ii) Intends to defend the petition.
(iii) Objects to paying any costs claimed.
(iv) Agrees with the proposed arrangements for any children.
The eight day time period starts on the day after the Respondent receives the divorce papers. Longer time limits apply where the Respondent lives outside England and Wales.
11.4. WHAT HAPPENS IF THE RESPONDENT WISHES TO DEFEND THE DIVORCE?
The Respondent must file a defence (known as an ‘Answer’) within 29 days of receipt of the divorce papers (longer time limits apply where the Respondent lives outside England and Wales). The petition then becomes defended and the remaining procedure outlined below no longer applies. However it often still proves possible to reach a compromise over how the divorce is to proceed even when an Answer has been lodged. Defended divorce proceedings rarely result in a fully contested hearing. It will however inevitably take longer to finalise the divorce.
11.5. WHAT HAPPENS WHERE THE RESPONDENT AGREES THAT THE COURT HAS JURISDICTION AND DOES NOT WISH TO DEFEND THE DIVORCE?
The court will send a copy of the Respondent’s acknowledgement of service to the Petitioner’s solicitor who then prepares an affidavit (a sworn statement) which confirms that the contents of the petition are true. The affidavit must be sworn by the Petitioner before an independent solicitor or court official. This is then sent to the court with a request for a date for pronouncement of the provisional decree of divorce (known as the ‘decree nisi’).
11.6. WHAT HAPPENS IF NO ACKNOWLEDGEMENT OF SERVICE IS RETURNED TO THE COURT WITHIN THE TIME LIMIT?
The Petitioner will need to prove that the Respondent and any named Co-Respondent have received the divorce papers. This may require a duplicate set of the papers being sent to the Respondent by recorded delivery or arranging for someone to deliver the papers to the Respondent personally. In exceptional circumstances, where every attempt has been made to ensure that the Respondent has received the divorce papers, the court may make an order dispensing with the need to effect service.
11.7. HOW DOES THE COURT DEAL WITH THE PETITIONER’S APPLICATION FOR A DATE FOR PRONOUNCEMENT OF THE DECREE NISI?
The judge looks through the papers and decides whether the Petitioner is entitled to a divorce. If so, the judge certifies that a decree nisi should be pronounced. Both the Petitioner and the Respondent (usually through their solicitors) are informed by the court of the date on which the decree nisi will be made. This is usually a couple of weeks after the judge issues his certificate. The couple do not need to attend court for the pronouncement.
11.8. DOES THE COURT MAKE ANY ORDERS IN RELATION TO THE CHILDREN?
When the judge looks through the papers before he certifies that a decree nisi should be pronounced, he considers the statement of arrangements for the children which accompanied the divorce petition and whether future arrangements for their care are agreed by the Respondent. If there is no dispute between the parents, the judge will usually certify that he is satisfied with the proposed arrangements and that he does not need to make any formal order.
If the judge is concerned about the proposed arrangements for the children, he may ask for further information to be provided or he may ask the Petitioner and the Respondent to attend an informal appointment to clarify and explore particular areas of concern.
In some cases, the judge can direct that the decree nisi of divorce is not to be made final until he is satisfied with the arrangements made for the children.
11.9. WHEN CAN THE PETITIONER APPLY FOR THE DECREE ABSOLUTE?
Provided that the court is satisfied with the arrangements made for any children (or if not satisfied, where the court has not restricted the decree absolute application), the Petitioner can apply for the decree absolute six weeks and one day after the decree nisi was pronounced. The application is made on a standard court form and is usually processed within a couple of days. You will need to discuss the timing and impact of the application with your solicitor before it is made.
11.10. CAN THE RESPONDENT APPLY FOR THE DECREE ABSOLUTE?
If the Petitioner does not apply for the decree absolute, the Respondent may make a similar application, but will need to wait a further three months after the date on which the Petitioner could have first applied (ie six weeks and one day plus three months). The application is not granted automatically and usually requires attendance at court.