Although the exact date of the change is presently unknown, it is likely to be in or around April 2019 and will have a significant impact on estate administration and the costs of dying.
‘Fake news’ is such a hot topic over in the USA at the moment; we hardly stop to think about or challenge the “news” that is reported to us by our own media outlets.
There are two common misconceptions (and personal bugbears as a family solicitor) of divorces: the first is the reporting that celebrities “divorced in 25 seconds” and the second is the reporting that media outlets have been “denied access to court documents”. Addressing both in this article would result in a book, so we will focus on the “quickie” divorce.
The term “quickie” divorce is not only technically inaccurate, but it also gives the public an impression that the Court works more efficiently for celebrities and that the ‘average’ person is at a disadvantage. Frequently, we receive instructions that a person would like to divorce “as soon as possible” but unfortunately there are several factors involved in the process.
Once a divorce petition has been drafted and approved, it is good practice for a solicitor to send a copy of the draft to the spouse. Not only does this stop spouses being caught off guard, but they can also seek legal advice at the very start of the process which can speed things up (as most solicitors will advise their clients not to defend against a divorce, save for in exceptional circumstances).
The divorce petition is then submitted to the Court. It will now rest with the administration team (read masters of the universe) at a local divorce unit. Some units have a quick administration time, others not so much. They will take a fee and issue a petition. A copy will be returned to the divorce initiator, and another sent directly to the spouse in question. Already you’re looking at more than 25 seconds! But we’ll continue…
With their copy of the divorce petition, the spouse will also receive an ‘acknowledgement of service form’ to complete. This form allows them to confirm who they are, when they received the documents and most importantly, whether they intend to defend against the petition or not (see above regarding providing a spouse with a draft petition before issuing).
Most spouses complete and return the acknowledgement of service form without issue or delay. Others, however, do not. There will be many reasons for this, but ultimately the Court cannot proceed unless the parties can demonstrate receipt of the petition or that they have had notice or “know” of the petition or simply cannot be located. The easiest method is to arrange to have the spouse personally served by a process server or a court bailiff.
In either case, if the spouse acknowledges service and sends it back to the Court, the divorce initiator is again in the hands of the administration team; e.g. it could take two weeks to process and another couple of days for it to then be sent out. Or, if arrangements are made to serve the spouse, this could take a couple of days or a couple of months depending on how hard they are to locate.
Once the spouse has had notice of the proceedings, the divorce initiator is now in a position to apply for a Decree Nisi. This is the first decree that is pronounced in a divorce and is the first time the petition and other documents will be placed before a judge to review. Having reviewed the documents, if the judge is satisfied there are grounds for a divorce, they will issue a Certificate to Entitlement. The Certificate will notify the date on which the Court will pronounce the Decree Nisi.
If the judge is not satisfied that there are sufficient grounds for a divorce, for example, if there has been a period of reconciliation for over six months since the date of adultery, then the Court will inform of this in writing.
Now, here’s the interesting bit and where the media latches on to give some credibility to their fake news. The pronouncement of a Decree Nisi happens in open court, and the parties are excused from attending. It is a fairly ceremonial process today and simply involves a judge reading out the names of the parties concerned and giving the opportunity for anyone to object to the making of the order. It doesn’t take a judge long to read two names, hopefully less than 25 seconds, and that is where the misconception stems from.
Importantly, this is not the judge granting a divorce, just simply confirming that the petitioner is entitled to a divorce. Not divorced in 25 seconds and certainly not quick!
But the media doesn’t stop there. As previously stated, the Decree Nisi is only the first decree pronounced in a divorce. There is a waiting period of six weeks and one day from the date of the Decree Nisi before parties can apply for a Decree Absolute. This is a statutory period that cannot be abridged (unless under very rare circumstances). Again, dispelling the theory of a 25-second divorce!
Thankfully, this stage is straightforward. A solicitor will advise whether it would be financially beneficial to apply as soon as the six-weeks-and-one-day period has expired (if there are outstanding financial matters, it may be in the best interest to delay the application). Once the decision is taken to apply for a Decree Absolute, the application is completed and sent to the Court. Once again, this process rests in the hands of the administration team, but often this stage is dealt with very quickly. More often than not, the Decree Absolute is returned within a week of submission but alas, still not 25 seconds!
In conclusion, we hope that we’ve debunked the myth that anyone – celebrity or otherwise – can obtain a 25-second divorce. However, depending on the circumstances, the divorce process can be fairly straightforward and, in reasonable terms, quite quick. Or, if a spouse refuses to acknowledge the proceedings or evades service, the process can be a drawn out and lengthy affair.
To discuss these issues further, please contact Kadie Bennett.
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