If the respondent has confirmed in his or her acknowledgement of service form that they do not intend to defend the divorce (see below), or if the respondent’s time for filing the acknowledgement has expired (and the petitioner can prove that the respondent has received the papers) then the petitioner can apply for the divorce to proceed. The application is made by filing with the court an application for directions for trial form together with an affidavit in support of the petition. Many courts will send these documents to the petitioner with the copy of the respondent’s acknowledgement of service, but see also Appendix 1.
As will be seen from Appendix 1, the application for directions for trial is a very simple form that essentially only requires completion of the heading, signing and dating.
The exact contents of the affidavit in support of the petition will depend upon the basis of the divorce. Leaving aside desertion, there is one affidavit for adultery divorces, one for unreasonable behaviour divorces and one for divorces on the basis of two or five years’ separation (these two are essentially the same). An example of each can be found in Appendix 1. As will be seen, all of the affidavits have common paragraphs. The following explains the affidavit in support of adultery petition in detail, and then explains those paragraphs that are different in the other two affidavits. All three affidavits are in two parts: a question and answer section, followed by the body of the affidavit itself, where you confirm that the answers that you have given previously are true.
Affidavit in support of adultery petitionstyle="font-style:italic;">
Refer to the example in Appendix 1. Question 1: Always answer ‘yes’, obviously!
Question 2: Check through your petition and make sure that everything in it is still correct. If there is anything wrong in the petition, state it here. If you do not do so, then the district judge may pick it up when you apply for the divorce to proceed (see below) and may refuse to allow the divorce to proceed (you may then have to go to the trouble and expense of amending your petition – see the section below on Amended and Supplemental Petitions). Typical errors are in the spelling of names, addresses and the place of marriage. Do not try to add to the grounds for divorce, for example by alleging unreasonable behaviour as well as adultery, or to add to the allegations in the petition, as the court may then want you to amend the petition and re-serve it on the respondent. If you do not wish to alter the petition, simply answer ‘No’.
Question 3: You will normally answer ‘Yes’ to this question, as your petition should not usually contain any statements that are not within your own knowledge.
Question 4: This is the first of the questions specific to adultery petitions. As you will normally be relying upon the respondent to admit the adultery, you should usually answer ‘Because the respondent has admitted the adultery’ or similar. If a child has been born to the respondent as a result of the adulterous relationship and you are using this to prove the adultery, then state it here – you may also wish to exhibit to the affidavit a copy of the child’s birth certificate, giving the respondent as a parent. Note that simply stating that the respondent has been seeing
someone else is not proof of adultery – see the section above on the ground for divorce.
Question 5: The importance of this question is that you cannot rely upon the adultery if you and your spouse lived together for more than six months after you found out about the adultery (unless the adultery is still continuing) – again, see the section above on the ground for divorce. Note that the relevant date is the date that you found out about the adultery, rather than the date that the adultery began. State the date here. If you are not sure about the exact date, state ‘On about the [date]’.
Question 6: Always answer ‘Yes’ to this question – you cannot rely upon the adultery unless you also find it intolerable to live with the respondent.
Question 7: Again, this relates to the six-month rule referred to in question 5 above. Answer the question with the facts but make sure that the period is less than six months – if not then, if it is the case, state that the adultery is still continuing.
Question 8: This and the next two questions are the same in all three affidavits. Obviously, answer ‘Yes’ to this one.
Question 9: Again, check the statement of arrangements form before answering this one. It would also be useful to check what the respondent stated about the form in their acknowledgement of service – they may have picked up on any errors in the form. If anything does require alteration, state it here, otherwise simply answer ‘No’.
Question 10: Like question 3, you will normally answer ‘Yes’ to
this question.
We now move on to the body of the affidavit itself. Insert your full name, address (don’t worry if you do not wish to disclose this to the respondent – they will not see the affidavit) and occupation. Paragraphs 1 and 2 then require no alteration. Paragraph 3 should be deleted if the respondent’s acknowledgement of service was signed by a solicitor and not by the respondent, although it will normally be signed by the respondent in adultery divorces. If the respondent did sign it, put their signature in inverted commas after the words ‘I identify the signature...’ exactly as it appears on the acknowledgement, so if the respondent signed the acknowledgement ‘J Smith’, put that in paragraph 3, and, later in the paragraph, delete the word ‘husband’ or ‘wife’, as appropriate. You will then need to exhibit a copy of the respondent’s acknowledgement of service to the affidavit. This is done by marking the top of the front of the copy with the letter ‘A’, or by attaching to the copy an ‘exhibit note’, on which is written: ‘This is the exhibit marked “A” referred to in the affidavit of [name] sworn this [blank] day of [blank], before me [blank]’. The blanks will be filled in by the person before whom you swear the affidavit – see below.
Paragraph 4 of the affidavit is to be completed in a similar fashion where the respondent has signed a confession statement – see the section above on the ground for divorce. Again, a copy of the statement is exhibited to the affidavit. Note that if the respondent has indicated in their acknowledgement of service that they admit the adultery, and signed the acknowledgement, then there is little point in also exhibiting the confession statement. If you are not exhibiting a confession statement, then this paragraph can be deleted.
the paragraph in a similar way to the above and exhibit a copy of the statement to the affidavit. If there are no children, or if the respondent has not signed the statement, then delete this paragraph.
Paragraph 6 is to be used where you wish to exhibit any other document upon which you intend to rely, such as a child’s birth certificate (see above). Write out the paragraph in a similar fashion to the previous paragraphs and exhibit a copy of the document to the affidavit.
Lastly, paragraph 7 sets out what you are asking the court to do, that is, to grant a decree (nisi) dissolving the marriage and, if appropriate, to order the respondent and/or co-respondent to pay your costs of the divorce (see the section above on the prayer in the divorce petition). If you do not wish to claim costs, then delete the words in square brackets. If you only wish to claim costs against the respondent, then delete the words ‘co-respondent’. If the amount of the costs has been agreed, or you only wish to claim part of the costs, then amend the paragraph as appropriate, for example ‘and to order the respondent to pay [£500 towards] [one half of] the costs of this suit’.
You then just need to complete the backsheet to the affidavit in the usual way.
Affidavit in support of behaviour petition
Refer to the example in Appendix 1.
Question 1: This is worded differently from question 1 in the adultery affidavit but is essentially the same and should therefore also be answered ‘Yes’.
Questions 2 and 3: These are exactly the same as in the adultery affidavit.
Question 4: You don’t need to worry too much about how you answer this question, as it will have little bearing upon whether you are entitled to the divorce. If the respondent’s behaviour has affected your health, give brief details. If it has not, answer: ‘The respondent’s behaviour has not affected my health’. You may have mentioned the effect of the respondent’s behaviour upon your health in your petition, in which case you can answer something like: ‘The respondent’s behaviour has not affected my health, save as stated in my petition’.
Question 5: This and question 6 is relevant to the six month rule – see the ground for divorce section above. Answer ‘Yes’ or ‘No’ to the first part and, if you answered ‘No’, then put the date of the last incident of the respondent’s unreasonable behaviour in the second part.
Question 6: You must show that you and the respondent have not lived together for more than six months since the date of the last incident of the respondent’s unreasonable behaviour. If you have not lived at the same address as the respondent since that date (or if no date was given in the answer to question 5, since the date of the petition), then answer ‘No’ to the first part of this question and ignore the second part. Note, however, that you can still be counted as living apart albeit at the same address if you are really living completely separately from the respondent, as far as possible.
Accordingly, if you had to answer ‘Yes’ to the first part of the
question then you will need to complete the second part to show
that you were living completely separately. Obviously, the more
separate the arrangements, the more likely that the court will find that you are living completely separately, so it is preferable if you are sleeping in separate rooms, cooking separately and not paying each other’s bills.
Questions 7 to 9: These are the same as questions 8 to 10 of the adultery affidavit.
The body of the affidavit itself is similar to the body of the adultery affidavit, save that instead of providing for the exhibiting of a confession statement it provides (at paragraph 4) for the exhibiting of a medical report, in those (rare) cases where the petitioner wishes to rely upon such a report as evidence of the effect of the respondent’s behaviour upon their health.
Affidavit in support of separation petition
.
Refer to the example in Appendix 1
Questions 1 to 3: These are exactly the same as in the adultery affidavit.
Question 4: Insert the date of the separation, exactly as it appeared in your petition.
Question 5: The answer to this question is not particularly important, so you don’t need to worry too much about what you say here – you certainly do not need to give detailed reasons for the separation. Something like: ‘The respondent and I were not compatible’ will suffice.
Question 6: Again, you need not worry too much about how you answer this question. Something as simple as: ‘At the time of the separation, in the above circumstances’ (referring to your answer to the previous question) is sufficient.
Question 7: This question is important, as your answer will prove that you and the respondent have lived separately for the requisite period (two or five years). You should therefore include as many details as you can of your, and the respondent’s, addresses, with dates, since the date of the separation. Make sure that there are no gaps in the dates, and if you are not sure of an exact date put the month, the year or ‘about [date]’. Similarly, if you do not know an address, give as much detail as you can, for example the road or town in which the respondent lived.
Question 8: This relates to the six-month rule relating to separation cases, referred to in the above section on the Ground for Divorce. To reiterate, any period not exceeding six months or periods not exceeding six months in total that you resume living with the respondent after the date of the separation will not prevent a divorce on the basis of two or five years’ separation, but that period or those periods will be added to the total. If there have been any such periods, set them out in the answer, but make sure that they don’t total more than six months and that they have been added to the two- or five-year period.
Questions 9 to 11: These are the same as questions 8 to 10 of the adultery affidavit.
The body of the affidavit itself is very similar to the body of the behaviour affidavit, although there should be no need to exhibit a medical report. As to paragraph 6, remember that claiming costs is not appropriate in divorces based upon five years’ separation.
Once you have completed the affidavit, you will need to get it sworn. This can be done either at the divorce court or in front of a solicitor (not belonging to the firm acting for the respondent). If you take it to the court, the court office will be open from 10am
to 4pm Mondays to Fridays and they will not charge a fee for this service. If you take the affidavit to a solicitor, you will be charged a fee of £5, plus £2 for each exhibit (don’t forget to take the exhibits with you when you get it sworn!).
Once the affidavit has been sworn it should be filed with the court together with any exhibits (keep copies for yourself) and the application for directions form. There is no fee to pay.