Process for Divorce or Dissolution

I want to get a divorce/dissolution

To start proceedings to get a divorce/dissolution you must have been married or in your civil partnership for more than one year.

You must also be able to prove to the court that you have reason(s) (referred to as ‘grounds’) for saying that your marriage or civil partnership is at an end.  The expression that court will use is that that marriage or civil partnership has ‘irretrievably broken down’.

In support of your grounds, you must use one the following ‘facts’ as proof:

• That your spouse/civil partner has committed adultery^[1], and that you find it intolerable to live with them.
• That your spouse/civil partner has behaved in such a way that you cannot reasonably be expected to live with them.
• That your spouse/civil partner deserted you at least one year ago.
• That you and your spouse/civil partner have lived apart for least one year and they agree to a divorce/dissolution.
• That you and your spouse/civil partner have lived apart for at least three years.

For the court in the Falkland Islands to have jurisdiction (the legal authority) to grant you a divorce/dissolution, you must have some connection to the Falkland Islands.  At the date of your application you must have one of the following connections:

• You are domiciled in the Falkland Islands;
• Your spouse/civil partner is domiciled in the Falkland Islands;
• You and your spouse/civil partner are domiciled in the Falkland Islands;
• You have been habitually resident in the Falkland Islands for at least one year before your application;
• Your spouse/civil partner has been habitually resident in the Falkland Islands for at least one year before your application; or
• You and your spouse/civil partner have been habitually resident in the Falkland Islands for at least one year before your application.

^[1] ‘adultery’ is defined as including any act of infidelity and is not restricted to sexual intercourse (see Matrimonial and Civil Partnerships Proceedings Ordinance 1979).

What form do I need to complete?

To start proceedings to get a divorce or dissolution you will need to complete form ‘Application for a divorce, dissolution or (judicial) separation’ (form D8).  If you do not wish for the respondent (other party to the marriage/civil partnership) to have your contact details, you should also complete form ‘C8: Confidential contact details’.  When you have completed your form, you should file it with the court office in Stanley and pay a fee, if one is payable.

Financial Orders

If you wish to apply for a Financial Order, you should make it known when completing the Petition or the Answer to the Petition.  If you change your mind later in proceedings, you will need leave of the court to make the application.

I’d like to start my petition, what information and documents do I need?

You will need to give a copy of your marriage certificate or civil partnership certificate to the court when you start your petition.  It will be kept on the court file.  The copy provided must be an original or a certified copy.

In addition to this, you will need:

• Your own name and address.
• Your spouse’s/civil partner’s name and address.
• The names and addresses of any person with whom your spouse/civil partner has committed adultery, if you wish to name that person in your petition.
• The grounds upon which you wish to apply for divorce or dissolution.

What happens when I file my petition?

Once you have filed your application the court will process it and issue a copy of it to the respondent, and any co-respondent, with:

• Notice of Proceedings (D10),
• Acknowledgment of Service (D10A) and
• Answer to Petition (D8B).

In most circumstances, this will be sent to (referred to as ‘service’) to respondent by email with a notice sent in the post.  If you are serving the application, with the notice of proceedings, acknowledgement of service and answer to petition, you will also be given a ‘Certificate of Service’ to complete and return to the court. 

Once the application is served, the respondent, and any co-respondent, have 21 days^[1] from the date of the post mark to return the acknowledgement of service.

If the respondent, or co-respondent, wishes to defend the petition they will have an additional 14 days to return the Answer to Petition (35 days in total from the date of the post mark).

In calculating the days, the court will not count the day of posting.  Weekends and public holidays are counted. 

The Acknowledgement of Service and any Answer to Petition will be returned to the court and then sent to you.

^[1] The Family Procedure Rules 2010 provide for 14 days however, the Falkland Islands have extended this to 21 days to account for self-collect post and delivery outside of Stanley.  If the petition is being served outside of the Falkland Islands, the court may adjust the timings.

I have received a petition; what do I need to do?

If you have been named as a respondent, or co-respondent, you will have received the documents referred to above.  You should read the petition carefully before completing the acknowledgement of service.  Once you have completed the acknowledgement of service you should return it to the court.

If you do not agree to the divorce/dissolution, you can complete and return an ‘Answer to divorce/dissolution/judicial separation or nullity petition/application’ (form D8B).  Please read the instructions on this form carefully before you complete it.  When you have completed the form, you should return it to the court. You have 35 days from the date of the post mark to complete and return the D8B to the court.

What is a Decree Nisi/Conditional Order?

In determining if you can have a decree nisi/conditional order, the court will look at if your marriage/civil partnership is valid, if you have been married/civil partners for the minimum amount of time and will determine if you have grounds and facts to support a divorce/dissolution.  If a court grants a decree nisi/conditional order it is a declaration that your marriage or civil partnership can lawfully be ended. 
A decree nisi/conditional order does not end the marriage/civil partnership.

How do I apply for a Decree Nisi/Conditional Order?

Once the time limits for response to the Petition have passed you are able to apply for a decree nisi/conditional order.

If there is no defence to the petition:

you can apply by completing an application for decree nisi/conditional order (form D84) and the relevant supporting statement.  You will also need to attach a copy of the acknowledgement of service (please see the instructions contained in the D84).  Once your application is filed, the court will review your application alongside the petition and the acknowledgement of service.  If the court is satisfied you are entitled to a decree nisi/conditional order you will be sent a Judge’s Certificate and Directions.  This will tell you the date and time of when the Judge will sit to pronounce (make) your decree nisi/conditional order.  This will be done in open court^[1].

 ^[1] Open court means members of the public and press are able to sit in the court room and listen to the court hearing.

If there is no response to the petition: 

If the respondent does not return the acknowledgement of service, you may apply for a decree nisi/conditional order, by completing an application for decree nisi/conditional order (form D84) and the relevant supporting statement, when the time limits for returning the acknowledgement of service and answer to petition have passed. The court may list your application for hearing before the Judge before a decision is made about your decree nisi/conditional order.

If there is a defence to the petition:

You may apply for a decree nisi/conditional order, by completing an application for decree nisi/conditional order (form D84) and the relevant supporting statement, when the acknowledgement of service and answer to petition have been filed and served. The court will send you directions for a hearing.

What supporting statement do I need to complete?

I have filled in my application for a Decree Nisi, what happens next?

When you file your application, the court staff will place your petition, and your application for a decree nisi before the judge, who will consider the applications and decide if you can have a divorce or dissolution.

In making this decision the judge will need to be sure:

• The particulars of the marriage/civil partnership in the petition match the certificate of marriage/civil partnership provided in support of the petition.
• The parties had been married/in a civil partnership for at least 1 year before the issue of the petition.
• The residence requirements are met (at least one party is domiciled/resident in the Falkland Islands for at least 1 year).
• The petition has been served on the Respondent (and Co-Respondent if applicable).
• Any previous proceedings relating to the marriage/civil partnership have been disposed of and no copy orders are required.
• The time for filing a defence has expired.
• That an admission is personally signed by the Respondent if the fact relied upon is Adultery.
• That the consent is personally signed by the Respondent if the fact relied upon is 1 year separation and consent.
• That any supporting affidavits are sworn and complete (any exhibits attached are properly marked up).
• That the grounds and facts relied upon are evidenced.

And finally, the Judge will need to consider the issue of costs^[1] between the parties.  If the Judge cannot be sure of the 10 matters listed above, your application for decree nisi may fail. If the Judge is sure, they will list your application for hearing for pronouncement of the decree nisi.  You will be notified of the date and time of the hearing.  A hearing for the pronouncement of Decree Nisi is open to the public and you may attend if you wish to do so.  There is no requirement for any of the parties to attend.

^[1] ‘costs’ are who is responsible for paying the costs of the case.  These may be agreed in the petition and/or acknowledgment of service or they may need to be decided at the end of the case.

How do I apply for a Decree Absolute/Final Order?

You can apply for your decree absolute/final order six weeks after your decree nisi/conditional order has been pronounced[1].

To apply for your decree absolute/final order you need to complete ‘Notice of application for decree nisi/conditional order to be made absolute/final’ (form D36) and file it with the court.  If there have been no objections and there are no ancillary applications outstanding, the court will make your decree absolute/final order and send it to you.

IMPORTANT: Divorce/dissolution affects inheritance under a Will.  Where a will has already been made by either party to the marriage/civil partnership then any provisions of the will appointing the former spouse/civil partner executor or trustee or conferring a power of appointment on the former spouse/civil partner shall take effect as if the former spouse/civil partner had died on the date on which the marriage/civil partnership is dissolved unless a contrary intention appears in the will[2].  Also, any property which, or an interest in which, is devised or bequeathed to the former spouse/civil partner shall pass as if the former spouse/civil partner had died on the date on which the marriage/civil partnership is dissolved unless a contrary intention appears in the will.

[1] Matrimonial Causes (Decree Absolute) General Order 1988

[2] Wills Act 1837, ss18A and 18C.