The next thing you will need to decide is which court to use. Divorces are dealt with by county courts, but not all county courts deal with divorce. For details of how to find your local divorce county court, see Appendix 4. Note that you do not have to use your nearest court – you may issue proceedings in any divorce county court. However, if the court is some distance from the matrimonial home then the respondent may request a transfer to the local court, especially if it is necessary to attend court for a hearing. The court will normally agree to such a request, which will cause a delay whilst the papers are transferred to the local court.
Once you have decided upon the basis of the divorce and which court to use, you can begin drafting the divorce petition. It is important that the petition is drafted correctly, as errors in it can at best cause further expense and delay while it is amended, or at worse they can make the document invalid, with the result that you have to start over again.
Now look at the example divorce petition in Appendix 1. The document essentially comprises five parts: the heading; the main body, in numbered paragraphs; the prayer (a throwback to when divorces were dealt with by ecclesiastical courts), which sets out what you are asking for from the court; the signature section; and the backsheet. With the exception of five-year separation divorces
(see below), most divorce petitions contain the same sections and paragraphs.
The following deals with each section of the petition in turn.
The heading
Insert the name of the court (delete ‘Principal Registry’, if the divorce is not being issued there (if it is, delete the words ‘In the [blank] County Court’). Leave the space after ‘No.’ blank – this is where the court will insert the case number. Insert your current full name after the words ‘This petition is issued by’, then insert the full current name of your spouse after the words ‘The other party to the marriage is’.
The main body
The numbering of the following paragraphs corresponds with the numbering of the paragraphs in the main body of the petition:
1 The first paragraph sets out the details of the marriage, which must comply with the details set out in the marriage certificate (if you do not have the certificate see the section below regarding filing the papers with the court, for details of how to obtain a certified copy). You will need to insert the date of the marriage, the full names of both parties at the time of the marriage (petitioner first) and the place of the marriage. Be careful with the place of the marriage – the wording must be the same as in the marriage certificate ( make sure you don’t misspell ‘Register Office’!).
retaining a maiden name) you should state and explain this here, for example, ‘Since the date of the marriage the name of the petitioner has changed by deed and he/she is now known as . . .’ or ‘Since the date of the marriage the name of the petitioner has changed as she retained her maiden name and is known as . . .’.
(1b) You should state similar details in respect of the respondent’s name, if you believe it has changed since the date of the marriage.
2 State the last address at which you and your spouse last lived together as husband and wife.
3 This paragraph is required in order to show the court that it has jurisdiction to deal with the divorce, rather than a court in another country. This can cause some confusion but in the vast majority of cases it is quite straightforward, especially if both parties have always lived in England and Wales. The terms ‘habitually resident’ and ‘domiciled’ are used in what follows. ‘Habitually resident’ means what it says, and the country in which you are ‘domiciled’ is essentially the country in which you live, or would be living if you were not (temporarily) living where you are currently – i.e. the country to which you intend to return, having not emigrated on a permanent basis. With this in mind, you will need to insert whichever of the following paragraphs applies:
a) ‘The petitioner and respondent are both habitually resident in England and Wales.’
b) ‘The petitioner and respondent were last habitually resident in England and Wales and the petitioner [or the respondent] still resides there.’
c) ‘The respondent is habitually resident in England and Wales.’
d) ‘The petitioner is habitually resident in England and Wales and has resided there for at least one year immediately prior to the presentation of this petition.’ Followed by the address or addresses where you lived during that year and the length of time you lived at each address.
e) ‘The petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the presentation of the petition.’ Followed by the address or addresses where you lived during those six months and the length of time you lived at each address.
f) ‘The petitioner and the respondent are both domiciled in England and Wales.’
If you are in any doubt which, if any, of the above paragraphs applies to you then you should take advice – a Citizens Advice Bureau (CAB) should be able to help (for details of how to find your nearest CAB, see Appendix 2).
4 State the occupation and residence address of both parties, as at the date of the petition. If either party is not working then just state that they are ‘unemployed’. It is also acceptable to use the terms ‘househusband’ or ‘housewife’ as an occupation, if appropriate. If you do not wish to disclose your address, for example because your spouse has been violent towards you and you do not want them to know your whereabouts, then you will need to ask the court for permission to omit your
address from the petition. This is done by filing with the petition a short affidavit setting out the reasons for omitting your address. If the application is granted, the petition may proceed and you may omit your address from any further documents filed in the proceedings.
5 For each child who is a child of both parties, or treated as a child of the family (see the section on Arrangements for Children below), state the child’s full name (including surname) and their date of birth, unless they are over 18 (in which case state ‘over 18’). If a child is aged 16 or 17, state whether they are at school/college, training for work or working full time. If there are no children, simply delete the word ‘except’.
6 Where there are other children born to the wife during the marriage, their full name (including surname) and their date of birth, unless they are over 18 (in which case state ‘over 18’) should be inserted. If you are the husband, the paragraph should read: ‘No other child, now living, has been born to the respondent during the marriage (so far as is known to the petitioner) except’ – then state the details. If you are the wife, the paragraph should read: ‘No other child, now living, has been born to the petitioner during the marriage except’ – then state the details. In either case, if there are no children, simply delete the word ‘except’. If there is a dispute over whether a living child is a child of the family, insert an additional paragraph: ‘The petitioner alleges that [name of child] is [not] a child of the family’.
7 If there are or have been no other court proceedings with reference to the marriage (or to any child of the family) or between the petitioner and respondent with reference to any property of either or both of them, then leave this
paragraph as it is in the example. If there are or have been any such proceedings, add the word ‘except’ to the end of the paragraph and state the name of the court involved, the nature of the proceedings and details (including dates) of any court orders. If the proceedings related to the marriage itself, state whether you and the respondent resumed cohabitation after any order was made. If any proceedings relating to the marriage are still continuing in another country then their details will go in paragraph 9, so you can simply state ‘except as set out in paragraph 9 below’.
8 If there are or have been any proceedings in the Child Support Agency, add the word ‘except’ to the end of the paragraph and then give the date of the application to the Agency and details of the child support calculation made.
9 If there are any continuing foreign court proceedings relating to the marriage, add the word ‘except’ to the end of the paragraph, then give details of the country, the court, the date the proceedings began, the names of the parties, details of any orders made and the date of any future hearing. (If there are any such proceedings then the court will decide whether you may proceed with your petition before those proceedings have been decided.)
10 If the divorce is based on five years’ separation then you must state here whether an agreement or arrangement has been made or is proposed to be made between the parties for the support of the petitioner or respondent or any child of the family. If so, set out details of the agreement/arrangement. This paragraph should be deleted or omitted if the divorce is not based on five years’ separation.
11 This paragraph sets out the ground for divorce and should not be altered.
12 Here you will need to set out the fact that you are relying upon to show that the marriage has irretrievably broken down, as follows:
(i) Adultery: ‘The respondent has committed adultery with [a man] [a woman] [or – if you wish to name the co-respondent insert their name and afterwards the words ‘(hereinafter called the ‘co-respondent)’] and the petitioner finds it intolerable to live with the respondent.’
(ii) Unreasonable behaviour: ‘The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.’
(iii) Desertion: ‘The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of this petition.’
(iv) Two years’ separation: ‘The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted.’
(v) Five years’ separation: ‘The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.’
Note that, save for detailing the co-respondent in a petition based upon adultery, the wording of these paragraphs should not be altered.
13 Here you will need to give brief particulars of the fact relied upon to show that the marriage has irretrievably broken down, as follows:
(i) Adultery: You should state the dates on which or the periods over which the adultery is alleged to have taken place, together with details of the place or places at which it took place. Usually the petitioner will not have this information, but it is acceptable to state something like this: ‘Since about December 2007 at an address or addresses unknown to the petitioner the respondent has committed adultery with the said man/woman.’
(ii) Unreasonable behaviour: Set out, in numbered sub-paragraphs, brief details of the alleged behaviour, including any particular incidents, with dates and places. You do not need to write out a full history of the marriage, or even details of every incident. Keep it short – writing pages of allegations will only annoy the judge. In the unlikely event of the divorce being defended, you will have an opportunity to add to the allegations. A useful rule of thumb is to set out details of the first, worst and last incidents (although certain types of unreasonable behaviour can be of a continuous nature). The first incident will give an indication of how long the behaviour has been going on, the worst incident will give an indication of the seriousness of the behaviour, and the last incident should be within the last six months (see above). Remember, you need only say enough to satisfy the court that the marriage has irretrievably broken down, although if the allegations are on the weak side, then it may be necessary to give more
detail. If possible, try not to mention the children in any allegations, as if you do then the respondent is more likely to object to the allegations, as they may have a bearing upon arrangements for the children. If you believe that your spouse has committed adultery but cannot prove it, then you may say that they had a relationship with that person but not that they committed adultery. For an example of unreasonable behaviour particulars, see the example petition in Appendix 1.
(iii) Desertion: Simply state the date when and the circumstances in which the desertion took place.
(iv) Two or five years’ separation: Again, just state the date when and (if you wish) the circumstances in which the separation took place, for example: ‘The parties separated on the 1st day of January 2008 and have not lived together since that date.’
The prayer
1 The suit: Here you are requesting the court to dissolve the marriage. Leave the wording exactly as shown in the example petition.
2 Costs: If you wish to make a claim that the respondent pay your costs, then leave this paragraph as shown in the example. If, in an adultery divorce, you have named the co-respondent and wish to also claim costs against them, then state ‘co-respondent’ as well as respondent. If you only want the respondent to pay part of your costs (perhaps because this has already been agreed – see below), then amend the paragraph accordingly, for example ‘That the respondent maye be ordered to pay one half of the costs of this suit’, or ‘That the respondent may be ordered to pay the costs of this suit limited to the sum of £170’. Alternatively, you may only want to claim costs if the respondent should defend the divorce (see below – defended divorce proceedings can be extremely expensive, and such a claim may therefore dissuade the respondent from defending), in which case simply add the words ‘if defended’ to the end of the paragraph. If you do not wish to claim costs at all, then just delete this paragraph. Note that claiming costs is not appropriate in divorces based upon five years’ separation.
3 Ancillary relief: This is the part of the petition that causes most confusion. ‘Ancillary relief’ means any financial/property claim against your spouse, and for full details you should refer to Chapter 4. The simplest rule is: if in doubt, include the claims. The reason for this is that by including the claims you give yourself the option of proceeding with the claims (thereby avoiding the ‘remarriage trap’ – see Chapter 4), but you do not have to proceed with the claims. (Note that if you do not include the claims in the petition then you will need the court’s permission to proceed with them later.) You may, for example, have agreed all financial property matters with your spouse and simply want to include the claims so that they can be dismissed by the court in a consent order – again, see Chapter 4. The paragraph is divided into two sections – claims for yourself and claims for any children. Leave all the claims for yourself in, as set out in the example petition, although if you are asking for a property adjustment order you should give the address of the property concerned, and if you are asking for a pension sharing or attachment order you
should give details of the order you are seeking, if you know these. If there are any children, leave the claims for them in, although it is quite rare to proceed with any such claims – child maintenance (or ‘periodical payments’) is usually dealt with by the Child Support Agency if not agreed, unless this is one of the cases where the Agency cannot deal with the matter – see Chapter 3.
The signature section
Once the petition is complete, you should sign it beneath the prayer. Below that, insert the name and address of the respondent and (if named) the co-respondent. Below that, insert your address as the ‘address for service’ (i.e. the address to which all court papers for you will be sent). If you do not want the papers to be sent to your home address, for example because your spouse still lives there and you are afraid they may intercept them, or if the court has granted you permission to omit your address from the petition (see above) then you may give another address for service. Finally, beneath your address for service you should date the petition, preferably with the date that it is sent to the court or the date you file it with the court, if you attend the court to file it personally (see below).
The backsheet
The purpose of the backsheet is essentially to protect the document, the idea being that the petition is folded in half top to bottom, and the right-hand half contains all the details of the document. As will be seen from the example, the details comprise the court, a space for the case number, the parties’ names, the title of the document (‘Divorce Petition’) and the full name and
address of the petitioner. The backsheet always faces outwards, so that it can be read without opening the document.