Blog

19/02/2019 - By Warcup Law Firm

By Naomi Potter, Associate Solicitor

 

How can I get a divorce?

To get a divorce in England and Wales, you have to show that you have been married for at least one year and that your marriage has irretrievably broken down, which can be proved by one or more of five facts:-

  • Adultery.
  • Unreasonable behaviour.
  • That your spouse has deserted you for at least two years.
  • That you have been living apart for at least two years and your spouse consents to a divorce.
  • That you have lived apart for at least five years.

The person who starts the divorce proceedings is known as “the Petitioner” and his/her spouse is called “the Respondent”.  The divorce is started by lodging a Petition with the Court together with your marriage certificate and a Court fee of £550, unless you qualify for help with fees.  The Court will stamp the Petition, give it a case number and send a copy to your spouse.

When your spouse receives a copy of the Petition, he/she must fill in a form known as an Acknowledgment of Service, to say that he/she has received the Petition and whether or not he/she intends to defend the divorce. If he/she does not intend to defend, then your divorce will be known as an undefended divorce. If he/she say that they do not want a divorce (known as contesting), this will be a defended divorce. If your spouse indicates that he/she wishes to defend the proceedings then the Court will have to list a hearing.  Defended divorce proceedings are rare.  If your spouse does not return the form, you may be able to pay the Court to serve the papers in person or pay a process server to serve the Petition in order to prove that the Petition has been served on your spouse.

If the divorce is undefended, you can apply for your Decree Nisi and the Court will check the divorce papers and if they are happy you are entitled to a divorce, they will send out a Certificate of Entitlement to a Decree, with a date for when the Decree Nisi will be pronounced.  The Decree Nisi will then be pronounced on that date and you will receive a copy of the Decree Nisi from the Court sometime thereafter. A Decree Nisi does not mean your divorce is final.  You must wait six weeks and one day being the earliest date you can apply for the Decree Absolute, which will finally bring the marriage to an end.  The grant of a Decree Absolute may have a negative impact on your financial position, for example, losing pension benefits and may mean you are no longer entitled to any inheritance you may have otherwise been entitled to.  Therefore, it may be advisable not to apply for the Decree Absolute until financial matters have been dealt with and you should discuss this with your solicitor before applying for the Decree Absolute.

If you, as the Petitioner, do not make an application within three months of the earliest date on which you can apply for the Decree Absolute, your spouse can then apply for it, however, the Court will have to list a short hearing to decide whether or not the Decree Absolute should be pronounced at that stage.

If your spouse co-operates, the divorce is likely to take around 6 months from start to finish. Sorting out finances can take longer.

If you would like any further information about divorce or separation please contact Naomi on 01665 606100 or email np@warcuplawfirm.co.uk.

 

08/02/2019 - By Warcup Law Firm

By Mark Warcup, Director

 

Landlords – how can you get possession of your property if the tenant is not paying the rent?

The first thing to say here is be careful!

You do need a court order to repossess any residential property and if you take any action that might in any way be construed as harassing the tenant, you may be guilty of a criminal offence. This dates back to the Protection from Eviction Act 1977.

You have a couple of options, but you do need to be careful to follow the rules, and use the proper prescribed forms.

You can serve the tenant with 14 days notice that you intend to go to court for an order for possession. If the tenant does not clear the arrears, you can then make an application to court for a possession order. The tenant has an opportunity to respond to the court application before a court hearing takes place. If the court grants a possession order, it is normal to order possession in 14 days. If the tenant does not leave, you then need to arrange for the court bailiffs to enforce the order and take back possession. You can also get a judgement against the tenant that the rent arrears are paid, although in the vast majority of cases the tenant will leave and it will not be cost effective for the landlord to pursue the rent arrears.

If the tenancy has expired or is close to expiring, you can serve the tenant with 2 months notice to leave the property. If the tenant does not leave then you still need to make an application to court for an order for possession, but you can use the "accelerated procedure" which normally means a court hearing is not necessary, so the court case will not take as long. Under this procedure you would not get a judgement against the tenant for the rent arrears, only an order for possession.

If you take the first option then you will be able to start your court application quicker, but it will probably take longer to go through the court process, whereas if you take the second option it will be longer before you can start your court application, although it will then probably go through the court process quicker. The choice is yours.

Either way, if you have a tenant who is not paying the rent it is quite unlikely that they will pay any more rent once they are aware that you are trying to get possession back.

I recently attended a court hearing for a possession order in one of the small local courts to find that the court service had forgotten to organise a Judge for that day. Thankfully on this occasion the tenant did come to court and with the help of the duty solicitor who represented her we were able to reach an agreement that we left at court as a "consent order" for approval by a Judge later. If we had not been able to do that, our case would have been adjourned, as were the other cases at court that day. If there is one thing that I have learnt over the years, when going to court you should always expect the unexpected.