Appearing in Court
The applicant can either appear in person or be represented in court by a solicitor or barrister. It is not necessary for divorcing parties to have a lawyer. In simple divorces the parties can easily represent themselves. Application for Divorce Forms from the Registries of the court have detailed side notes on how to fill in the forms. Court staff will also advise on filing and serving the necessary documents.
If the divorce is opposed or if it involves special circumstances such as separation under one roof, it is wise to seek legal advice. Free advice is available from the Legal Aid Office or Community Legal Centres. In relation to children’s residence and contact, maintenance and property matters it is advisable that both parties consult solicitors to ascertain their rights.
Going to Court
On the day of the hearing the applicant or their lawyer should arrive before the hearing time. It is not usually necessary for the respondent to appear. In the foyer of the court building there will be a list of cases being heard. The applicant should look for their name, note the number of the court where the case is being heard and its number on the list. The applicant should find the court and be seated in the court by the hearing time. An applicant should not sit at the long table where lawyers sit. If the applicant does not have a lawyer, the clerk of the court should be told.
Proceedings are relatively informal and conducted by a Registrar or Deputy Registrar rather than a judge. If represented by a lawyer the applicant will not usually have to say anything. If appearing in person the applicant will normally be asked by the Registrar to state their name, the name of the respondent and whether there are any children under 18 years of age. The Registrar will then read the papers and may ask a few short questions about the separation or the children. The applicant must stand whenever the Registrar speaks directly to them. The hearing of the divorce will only take a few minutes. Often there will be 10 or 20 other couples whose marriages will be dissolved in quick succession by the Registrar.
Many people say afterwards that the court was like a ‘sausage factory’ or that “it was over before I knew it”. The reasoning behind this approach to divorce is that the breakdown of marriage is a private matter between the parties. The court is only concerned with the narrow factual question of whether the marriage is over. Unresolved emotional issues are best dealt with during private counselling and not in public by a court and lawyers. The court can concentrate on resolving disputes concerning children’s residence and contact, maintenance, property and other matters.
Witnesses and Attendees
In divorce proceedings, neither party is usually required to go into the witness box to give evidence. Sometimes the Registrar may require evidence about the separation or about the children. This will usually be very simple and not involve cross-examination by the respondent or their lawyer unless something contentious has been said. Often the Registrar will just ask the parties questions while they are seated at the bar table without requiring them to give evidence from the witness box.
Where the children live with an applicant who has a de facto marriage partner, that partner should come to court to give evidence, if necessary. Where the children live with the respondent and the respondent is not represented in court, the Registrar may want to hear evidence from the applicant or someone who has seen the children recently if the applicant is not fully aware of their situation. If the applicant does not have sufficient knowledge about the children and the respondent cannot attend court, they should be asked to swear an affidavit setting out the arrangements for the children.
Where there has been a separation under one roof, it is usually sufficient if the evidence of another person corroborating the applicant’s story is set out in an affidavit. However, if possible, this person should be in court in case the Registrar wishes them to give further evidence.
Bringing Friends and Relatives
Parties are free to bring friends and relatives to court if they feel in need of support. Children are not normally allowed in court.
In some circumstances the court can be asked to hear the divorce application in the absence of both spouses and their legal representatives (‘divorce on the papers’). The Registrar will make a decision on the basis of the papers that are filed in court. This should make divorce cheaper and simpler.
Divorce on the papers is only available if there are no children under 18 years of age. If at the hearing date the respondent has not filed an Response opposing the divorce or a Notice Requesting that the Dissolution Not Be Heard in the Absence of the Parties, then neither the applicant nor a lawyer need turn up.
If either party appeals against the terms of the decree nisi or the decree of annulment within 28 days after it is made, the decree nisi will not automatically become absolute until one month after the appeal is heard (ss55(3)(a) and 94(1)). The appeal is lodged by filing a Notice of Appeal at the Principal Registry and paying a filing fee.