Divorces can either proceed on an uncontested or a contested basis. Uncontested divorces are commonly known as “desk divorces” and are granted without the necessity of a court hearing. Contested divorces occur when the parties cannot reach a resolution on all of the issues, and accordingly, require a trial of the issue. However, the majority of matrimonial cases are resolved on an uncontested basis or by way of settlement.
The ground for divorce is a breakdown of the marriage, which may be established by one or more of the following; (a) one year’s separation (b) adultery (c) mental cruelty or (d) physical cruelty. The most frequent basis for divorce is one year’s separation. Divorce proceedings may be commenced as soon as the parties have separated; however, a divorce judgment cannot be granted until the one-year separation period has elapsed.
A divorce begins when one spouse (the “Applicant”) issues a Statement of Claim for Divorce. This document states the grounds for the divorce, the facts upon which the Applicant relies, and the relief sought, such as custody, support, a distribution of matrimonial property, and payment of legal costs. The other spouse (“the Respondent”) then files his or her response, agreeing or disagreeing with the contents of the Statement of Claim.
The time and effort involved with achieving a settlement of the issues depends largely on the spouses’ willingness to negotiate and compromise with each other. As mentioned above, the majority of divorce proceedings are settled among the parties before reaching the trial stage. Often, successful settlement negotiations take place immediately after both parties have filed their initial pleadings.
By nature, divorce proceedings have a greater emotional impact than other legal actions. Most clients in family law matters are in the process of resolving difficult and often painful emotional issues.