COURT PROCEDURES

It is likely that a court appearance will be necessary when the judge is not satisfied with the affidavit. When the petition is presented through the post the judge may refuse to grant the divorce. This may result in written questions or a request that the petition be amended. The petition can be re-served, that is re-issued.

The most common question might be that the grounds for unreasonable behaviour are not strong enough. The court would normally only expect up to say six incidents of unreasonable behaviour and they must be during the last six months. It would be unreasonable to rely on acts of unreasonableness going back further than that as it would then be difficult to justify that the other party has been unreasonable because you have been seen to have condoned them by carrying on the marriage.

The judge has to be convinced that the marriage has truly irretrievably broken down and that the grounds are strong enough. As a matter of practice the courts like to see that the parties have not been sleeping together say during the last six months. It would usually put that as the first ground of unreasonable behaviour as this would indicate that the marriage has broken down. Other grounds might be a selection of items such as excessive drinking, gambling, not socialising together, any incidents of violence or abuse, etc.

Sometimes the parties in an attempt to create an amicable divorce try to water down the grounds so as not to create too much conflict, but this can backfire if this then results in the judge refusing the petition. At the moment we do not have a system of no fault divorce on demand. To obtain a result one party has to accuse the other party of some sort of unreasonable conduct. The concept is a difficult one to explain to the public as they are brought up in the belief that there must be a guilty party. The grounds are in fact irretrievable breakdown and thereafter one of the facts.

In reality it does not matter that one party has been unreasonable, as apart from very rare circumstances it does not affect the parties’ properties rights.

Again this is a concept that does not find favour with the public. The public is of the opinion that if you indulge in bad behaviour this somehow affects your property rights. Logically this is a very harsh regime, but is not true. It is a harsh view of property law. As far as I am aware there is no rule that I somehow forgo my property rights if I have been unreasonable to other people.

Defended divorce

Again the current law of divorce derives from an Act in 1969 so it is over 35 years old. The public however feels that there are guilty and innocent parties. As a result they believe that a divorce can be defended. It means that obtaining a divorce becomes merely a process, which can relieve some problems and create others.

The overall ground of divorce is the irretrievable breakdown of the marriage. This means that if one party takes the view that the marriage has irretrievably broken down then it has. It becomes difficult, if not impossible, for the other party to claim that the marriage has not irretrievably broken down. If one of the parties wishes to defend the divorce then there will be a hearing in court. Such a course is doomed to failure as some take the view that if a marriage has gone this far it has broken down. It could not be interpreted as a normal marriage to argue that point in court.

The alternative is that the other party does not claim the marriage has irretrievably broken down, but the respondent wants to cross petition; that is, to try to put forward their own grounds for the breakdown of the marriage.

Many petitioners want to accuse the other party of adultery, which may be a natural reaction if they discover they have been left for other persons. The only problem is that administratively another party has to be served with a petition and it can create more work. By going for unreasonable behaviour this results in only one petition being served and there are alternatives if they do not acknowledge the petition. Cross petitions can result in more costs but may satisfy the parties that they are not the guilty parties.

The alternative is that the parties will have to wait five years, but again this is quite rare. Unfortunately the public gain a lot of their knowledge from watching American films or the TV soap operas. In these everyone is either refused a divorce or every aspect of the divorce has to be fought out from whom is guilty to the custody of the children. It is difficult to explain and convince people that this is merely television and not real life. Only parties who can afford to defend a divorce will be able to proceed and that will only be to prove a fine legal point or for religious reasons. Parties may do it with a view to reconciliation or to prove divorce if the other party will not admit it.

Children’s appointments

The statement of arrangement for children is served as part of the divorce produced with the petition. It is known as an S41 appointment if the judge is not satisfied with the arrangements. The children do not attend this appointment but both parties should do. Again this is fairly uncommon as the statement of arrangement sets out all the arrangements and unless the parties are unhappy with the arrangements then it will proceed.

Being represented in court

Most solicitors are perfectly able to resolve all matters to do with matrimonial property and children, but the clients may seek confirmation as will the solicitors from obtaining advice and assistance from counsel or a barrister to present the case. There are specialist barristers who are very good at concluding negotiations and drafting final orders.

Obviously there is a cost involved. The barrister can give the client a more independent view of the case, whereas the solicitor has been involved from the beginning and may be not so inclined to give the client the unpalatable news. The solicitor will choose the barrister and you may wish to have a conference with counsel well before the case is being heard, or at the very least on the day of the hearing. Barristers are used by solicitors for three reasons:

• their advocacy skills;
• their abilities to speak in court;
• their role as specialist advisers.

In the more complicated matrimonial matters and for peace of mind a good barrister is worth their fee. You will know that the case has been thoroughly presented and that you have received the best possible outcome in the circumstances.

Solicitors may also use barristers with a view to backing up their views to the client and satisfying the client that the best possible outcome has been achieved. From a solicitor’s point of view it can cut down on negligence claims.

The solicitors provide all the documentary evidence and barristers are masters of getting to the point and making sure all bases have been covered. Barristers are good at what they do, as they do not want to face the wrath of the judges if there are any glaring holes in the case.

Barristers will cross examine both their clients and the solicitors as to the adequacy of the case so that it will be fairly watertight by the time the judge has read the papers or has the opportunity of asking incisive questions. Modern litigation is designed so that there are no traps or ambushes and barristers make sure that is the case.

Court etiquette

In chambers the hearings are in private and in open court you would not normally be asked or expected to address the judge directly or interrupt. You will only be expected to answer questions directed to you.

You should dress as soberly as possible. It is easy for a man to wear a jacket and tie and it would not go amiss. This is more difficult for women, but sober skirt and blouse plus jacket would be the norm. Address the judge as sir or madam. If in doubt ask the solicitor to tell you before going in.

Even though your solicitor may ask you the questions the answers should be directed to the judge. Try not to argue with the judge, leave that to your representatives. It has to be done in a civilised manner.

What will actually happen?

The modern litigation system is mainly paperwork-based so, unlike a Perry Mason film there will not be any last minute evidence introduced. All the parties must have prior notice of any evidence.

Parties introducing matters at a late stage, or not answering legitimate questions may be penalised by a cost order against them. This is a powerful weapon to bring the parties to any agreement as the legal costs can mount up at an alarming rate.

The code requires lawyers to deal with each other in a civilised way and to encourage their clients to put their differences aside and reach fair agreements. Experience shows that agreed solutions are more likely to work in the long term than any arrangements imposed by a court. If the family has to resort to the court to resolve their dispute, it is best for all concerned that any proceedings are conducted in a constructive and realistic way to minimise conflict and distress as far as possible. The approach that any Resolution member adopts should be firm and fair. The code does not prevent solicitors from taking immediate and decisive action where necessary.