Divorce/dissolution is how a marriage is legally brought to its end. As well as the divorce itself, the parties need to consider resolving the relevant financial matters, which often involves the sale or transfer of the matrimonial home, division of other matrimonial assets including pensions and maintenance provision.
Grounds 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 facts.
- Your spouse has committed adultery and you find it intolerable to live with him/her;
- Your spouse has behaved unreasonably and you cannot be expected to continue living with him/her;
- Your spouse has deserted you for a period of 2 years;
- You and your spouse have separated over 2 years ago and your spouse agrees with the divorce to proceed;
- You and your spouse have separated over 5 years ago upon which you do not need to seek the other party’s consent with the divorce proceedings.
If you wish to rely on the fact of adultery, you must prove that such act has happened. In most cases your husband or wife will probably admit to committing the adultery. Your spouse would also need to confirm on a relevant form, Acknowledgement of Service, that they did commit the adultery. If they do not accept they committed adultery, you may need to obtain proof. If you carry on living with your husband or wife for more than six months after you find out about the adultery (regardless when the adultery was committed) , you will generally not be able to rely on this fact to progress the divorce, unless the adultery is continuing.
This fact is the most commonly cited when filing for divorce. It covers all sorts of unreasonable behaviour by your spouse. A good starting point is to consider the reasons why you have actually broken up in the first place. 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. Unreasonable behaviour can include but not be limited to: violence, threats, alcohol or drug issues, verbal abuse, lack of financial responsibility – including gambling – lack of emotional support, intimacy or interest in your life.
Desertion for at least two years
Desertion means leaving your husband or wife without his or her agreement and without good reason.
Two years’ separation, if your spouse agrees with the 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 five 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. If you receive this type of Petition, it would be in your interests to seek legal advice on your position.
The divorce process flowchart
The flowchart below summarises the divorce process for undefended divorces.
|1||A draft Divorce Petition is sent to the Respondent for their comments||Petitioner (you)||The steps 1 & 2 are good practice however, they are not always necessary. It depends on the circumstances of your matter.|
|2||If comments received, the Petition is amended as necessary and the Petition is then filed with the Court. If no response is received from your spouse, the Petition is filed without further prompts to the other spouse.||Petitioner|
|3||The Petition is served on your spouse – the Respondent, along with Notice of proceedings and Acknowledgment of Service form.||Court|
|4||Return of Acknowledgment of Service form||Respondent (your spouse)||Seven days after the respondent received the divorce papers.|
|5||Completion of Statement in Support of the divorce application along with Application for Decree Nisi||Petitioner|
|6||Decree Nisi is pronounced by the judge in an open court.||Court|
|7||Apply for Decree Absolute||Petitioner||Six weeks and one day after the pronouncement of Decree Nisi.|
|8||Apply for Decree Absolute||Respondent||Three months, six weeks and one day after the pronouncement of Decree Nisi, if the Petitioner has not applied.|
|9||Pronouncement of Decree Absolute||Court|
Preparing your Divorce Petition
In order to file the Divorce Petition with the Court, you need to be in a possession of the original of your marriage certificate or an official certified copy of it
The divorce petition will set out your grounds for the divorce.
The petition has to be in a particular format and has 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.
Acknowledgement of Service
The Divorce Petition, once issued, is sent by the Court to your spouse along with a blank Acknowledgement of Service form that they need to complete to move the divorce process to the second stage.
Your spouse 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 choose to defend it (which is rare). 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 of Service, it takes about four to six weeks to process it. Once the Acknowledgement of Service is processed, a copy is sent to you so that you can complete your Statement in Support of your divorce application as well as making an application for Decree Nisi.
Decree Nisi is a conditional decree of divorce. It does not end the marriage but means that the District Judge is satisfied that all the requirements have been met. Very rarely, you may be required to attend court, but many divorces happen entirely by post.
Decree Absolute legally ends your marriage and you will become divorced. You must wait for six weeks and one day from the date of Decree Nisi before applying for Decree Absolute. If the Petitioner does not apply for Decree Absolute after 6 weeks and 1 day, the Respondent is entitled to apply for it 3 months from the date that the Petitioner could do so. There will be a short hearing before District Judge who would want to hear from the Petitioner their reasons for not applying for it. The most common reasons for not applying for Decree Absolute at its earliest opportunity is that the financial matters on divorce have not been resolved and it may prejudice the Petitioner’s position if the Decree Absolute is granted. It is advisable to discuss this particular issue with your solicitor.
How long will the divorce process take?
Currently, the divorce main suit process, which means only the administrative part of the divorce and not the financial matters, are likely to take between 9 to 12 months However, it will take longer if the parties also deal with the financial matters on divorce as it commonly advised .
What happens if a financial agreement is not reached?
If after attending mediation, negotiations between the parties’ solicitors or the collaborative process, you are unable to agree on the division of the matrimonial finances, then you may be advised to proceed with a financial remedy application at court.
How much does a divorce cost?
The cost of dealing with all necessary stages of the divorce process (which excludes the financial and property matters) is a fixed fee of £1,000 plus VAT plus a court fee for issuing the petition which is currently £550.
Get in touch today to start your divorce
If you need help with the divorce proceedings, resolving the financial matters on divorce or just general advice, please get in touch with our local divorce specialists today.