Divorce is how a marriage is brought to an end. There are three areas to consider when getting a divorce; the divorce itself, which is the process which legally ends the marriage, the process of sorting out the financial issues, and the arrangements for children, if you have them.
Reasons for divorce:
Before you can obtain a divorce, you must have been married for a year, the marriage must be legally recognised under English law and one person must have lived in England or Wales for at least the year previous to the divorce application. The relationship must have also broken down without any hope of getting back together; this is called an irretrievable break down. This must be demonstrated to a court by one of five reasons (or grounds):
- Adultery: Your spouse (the legal term for your partner) has committed adultery and you find it intolerable to live together. In most cases you prove adultery by your husband or wife admitting it. If not, you will need to speak to a solicitor. (If you carry on living with your husband or wife for more than six months after you find out about the adultery, you will generally not be able to use this as grounds for divorce, unless the adultery is continuing.)
- Unreasonable behaviour: Your spouse has behaved in such a way that you cannot reasonably be expected to live together. This covers all sorts of bad behaviour. You need to think about the main things that have made your husband or wife difficult to live with. As with adultery, you cannot rely on single events that took place more than six months before you make your application if you have lived together since then, unless further incidents have occurred.
- Desertion for at least two years: Your spouse deserted you more than 2 years ago. Desertion means leaving your husband or wife without his or her agreement and without good reason.
- Two years’ separation, if you both agree to the divorce: You have been separated for 2 years and your spouse agrees to divorce. You can have had periods of living together as long as they do not add up to more than six months and you have been apart for at least two years altogether.
- Five years’ separation, if there is no agreement to the divorce: You have been separated for 5 years. Your spouse cannot defend this but they can ask the court not to complete the divorce process because of a major financial or other type of hardship.
Starting off the divorce
You will have to complete a divorce petition which sets out your grounds for the divorce. You will also have to complete a form called a “Statement of Arrangements for the Children” which gives details of any children involved. You will need to fill in details about the child’s school, the other parent and contact arrangements. This applies to any child under 16 and those over 16 who are in full-time education.
All these documents have to be in a particular format and have to state specific things. It is therefore prudent to have the help of a solicitor although the courts can provide you with blank forms. The Petition has to set out the details of one of the five reasons for the divorce. The original marriage certificate has to be sent to the court at the same time with the court fee.
These documents are then filed with your local County Court who will then serve copies upon your spouse, who must return them within 7 days from when he receives them.
In legal proceedings, you are known as the Petitioner and your spouse is known as the Respondent. Along with the Divorce documentation, the Respondent will also be sent instructions on how to complete the Acknowledgement of Service documentation. Your spouse then has to either agree with the petition for divorce or disagree. Once they have completed the Acknowledgement of Service and returned it to the Court, your divorce will then progress to the next stage.
The next step
When the court receives the Acknowledgement, it takes about three weeks to process it. Then you are sent a copy together with a part IV the Statement of Arrangements for any child. You should also receive two blank copies of an Affidavit and an Application for Directions.
You must complete this, preferably with the help of a solicitor who will then arrange for it to be sworn i.e. that the contents of the Affidavit are true. Any other documents would also be sworn at this stage. You will also need to have your copy of the Acknowledgement. When this is done and the Application for Directions is signed and dated, this, with the Affidavit is sent to the court office. There is not a fee at this stage.
The next part of the divorce process is known as the “Decree Nisi”. This is the first stage of the actual divorce. The Judge reviews all the paperwork and if he or she is satisfied that there are proper grounds for a divorce, the court will file a certificate to that effect, fix a date for Decree Nisi and send notice to the parties. If the court is not satisfied, then you are provided with the chance to file further evidence. If this fails then a date is fixed for a hearing in court. This is rare however. At this stage, the Judge will also check that all financial issues and arrangements for the children have been agreed or are in the process of being resolved. Very rarely, you may be required to attend court, but many divorces happen entirely by post. But if the documents sent to the court show that the arrangements are not agreed for the children, then you and your spouse may be asked to attend court.
You must wait for six weeks and one day from the date of the Decree Nisi before applying for the final stage of a divorce called the “Decree Absolute”. When that is granted, the divorce has taken place. There is no hearing. The application to the court is made on a standard form. When you receive the Decree Absolute, you are no longer married and are free to re-marry. The court will only grant the Decree Absolute when the Judge agrees that all arrangements for the children are now satisfactory. However if you, the petitioner, do not apply for the Decree Absolute, your spouse, may do so three months after that date. There has to be a brief hearing before a judge, but you could oppose it, for example, if there are problems with a pension for example.
How long will it take?
The divorce process is likely to take between five and eight months to complete. However it will take longer if there are disagreements about children or money which cannot be settled without going to court.
If agreement is not reached about money or children
If after discussions with your solicitor and perhaps mediation or the collaborative process, you are unable to agree, then you may be advised to proceed to court.
The divorce process flowchart
The flowchart summarises the divorce process for undefended divorces.
|1||File Petition at Court||Petitioner|
|2||Serve petition on the Respondent, along with notice of proceedings, form for Acknowledgment of Service and Statement of Arrangement for children, if relevant.||Court|
|3||Return of Acknowledgment of Service||Respondent||Seven days after the respondent received the divorce papers|
|4||Written Application For Direction||Petitioner|
|5||Directions: enter clause in special procedure list||Court|
|6||Decree Nisi is pronounced by the judge in an open court.||Court|
|7||Apply for Decree Absolute||Petitioner||From six weeks and one day from the Decree Nisi|
|8||Apply for Decree Absolute||Respondent||Three months and six months after the Decree Nisi if the petitioner has not applied|
|9||Pronouncement of Decree Absolute||Court|
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