Divorce

The mechanics of obtaining a divorce are usually quite straightforward - particularly if the couple agree that the marriage is over.  The difficulties tend to lie rather in resolving the related practical issues stemming from divorce, such as how to separate, where to live, arrangements for the children and any money matters.  The purpose of this leaflet is to outline a broad framework of the divorce process, to highlight key points and to set out the sort of timetable to expect. 

 

The procedures for Dissolution of a Civil Partnership and for Judicial Separation proceedings are essentially the same, except there is a Decree of Dissolution, or in Judicial Separation, a decree of Judicial Separation instead of Decrees Nisi and Absolute.  The parties remain "married", but legally separated.  Reference to "divorce" below includes Judicial Separation or Dissolution, save where indicated:-

1   Who can start divorce proceedings? 

Anyone who has been married for over a year provided one or other of the couple has a firm connection to the jurisdiction, or has been resident in England or Wales during the preceding year.  It does not matter where the couple were married.

2  On what grounds can a divorce Petition be started? 

The only ground for divorce is that the marriage has irretrievably broken down.  However, one of the facts laid down by law, proving irretrievable breakdown, has to be established. 

3  What are the "facts"?

a)     Your spouse has committed adultery and you find it intolerable to continue living together (not available for Dissolution proceedings)

b)     Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.

c)     Your spouse has deserted you for a continuous period of 2 years or more.

d)     You and your spouse have been separated for 2 years or more and your spouse agrees to the divorce.

e)     You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

4  If the marriage has "irretrievably broken down" and one of the facts applies, what happens next? 

This will depend upon your particular circumstances.  You are encouraged to obtain your spouse's consent to the Petition and to try to reach agreement over its contents.  For example, if your spouse accepts that the Petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour may need to be given.  Leaving some matters out of the Petition would not normally prejudice you, whereas to include them might prevent agreement.

5  What does the Petition look like? 

Every Petition (now known as “Application”, but we will use Petition for ease of reference) follows the same form.  It contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down.  It will also state the "fact" on which it is intended to rely.

The Petition includes a section (the "prayer") which includes a request for the divorce to be granted.  It may also include a request for an order relating to the costs of the divorce and a claim for financial provision for the Petitioner and for any children.

6  How much does the divorce cost? 

The Court fee is currently 550.  Our costs range from around 400 to 650 plus VAT, depending on the fact used and difficulty e.g. in obtaining approval or agreement from the other party.  Those who are on a low income may be able to obtain a waiver of Court fees.

7  Are financial issues dealt with before the divorce is finalised? 

It is not necessary for financial discussions to be completed by the time the divorce is final.  Frequently they will still be in the early stages if finances are complicated.  However, it should be at least be possible to resolve immediate problems and make temporary maintenance arrangements.

 8 Are the proceedings public? 

Court proceedings in family law are usually private.  This means that the public and press are not allowed access to the Court papers.  However, the press are able to publish the fact that a divorce has been pronounced.  The information that they may disclose is very limited.  They may disclose the "facts" of the divorce but they are not able to publish details of the adultery or unreasonable behaviour.  This does not usually happen in this area.

9  What happens? 

9.1    After one year of marriage: 
Either spouse may start the divorce.  He or she is usually referred to as the “Petitioner” or “Applicant”.  The Petition is completed and then sent to the Court together with the original marriage certificate.  The issue fee is payable unless the Applicant is entitled to a waiver or remission of fees.

9.2    Within a few days of sending the Petition to the Court: 
The court sends a copy of the Petition to the other spouse, referred to as the "Respondent".  A copy of the Petition is also sent to anyone named in an adultery Petition.  That person may be referred to as a "Co-Respondent".  If the Respondent (or Co-Respondent) has instructed Solicitors, the Petition may be sent to them.

9.3   From the date the documents are received the Respondent has strict time limits to observe: -

a)     Within 8 days:  He or she would send to the Court a form called an "Acknowledgement of Service" which accompanied the Petition.  The forms asks the Respondent whether it is intended to defend the Petition and whether any claim for costs is disputed.

b)     Within 29 days of receipt (longer if the documents have to be sent to an address abroad):  Whether or not an Acknowledgement has been filed, the Respondent must, if he or she intends to defend the Petition, file a Defence (called an "Answer").  The Petition then becomes defended and the procedure outlined below does not apply.  Defended divorce proceedings resulting in a fully contested hearing are very rare.  However, a delay in finalising the divorce is inevitable.

9.4    Within a few days of receiving the acknowledgement of service from the Respondent (and Co-Respondent):  The Court sends a copy of the form(s) of Acknowledgement of Service to the Petitioner’s solicitor.

9.5    When the Acknowledgement is received (if the Respondent is not defending the Petition): The Applicant can apply for the Decree Nisi to be pronounced.  A Statement is prepared confirming that the contents of the Petition are true.  It will also state whether any circumstances have changed since the filing of the Petition.  The Statement and any updating documents are sent to the Court with the request for a date for the first decree of divorce (Decree Nisi) to be pronounced.  If (which is very rare) the Respondent says s/he will defend the divorce, s/he must file an "Answer" to the Petition saying why it is defended.  The divorce then becomes contested and different rules apply.  If you are applying for Judicial Separation, your application at this stage is for a decree of Judicial Separation, not a Decree Nisi.

9.6    If Acknowledgements of Service are not returned to the Court?  Proof that the Respondent (and any named Co-Respondent) has received the Petition will have to be obtained before the Petitioner can take the next step.  This may involve arranging for the Court Bailiff or a Process Server to deliver the Petition to the Respondent (and Co-Respondent if applicable) personally.  If this is not suitable, then applications for substituted or deemed service, or to dispense with service, are possible depending on the particular circumstances of each case.

9.7       On receipt by the Court of the application for a date for pronouncement of the Decree Nisi and Statement:  The District Judge looks through the papers and, if they seem in order, gives a certificate for the Decree Nisi to be pronounced.  Both the Petitioner and the Respondent (via Solicitors) are then advised of the date fixed for Decree Nisi, which is likely to be several weeks ahead.  Neither party has to attend Court, unless you no longer wish to proceed with the divorce/judicial separation, or there is disagreement as to who should bear the divorce costs.  Once Decree Nisi has been granted, you are not free to remarry, as you are not yet divorced. In Judicial separation proceedings, the decree made by the Court at this stage is the final decree, but you are still "married".  In both cases, the Court now has the power to deal with the main financial aspects.

9.8    If there are no restrictions on the Decree Absolute application: -

a)     6 weeks and 1 day after the date of Decree Nisi: - The Petitioner may apply for the final decree (the Decree Absolute) by sending the appropriate application to the Court.  This step is not automatic, but does not require a hearing, and usually, the court will process this application within a week or so. 

b)     3 months after a) above: - The Respondent may apply for the Decree Absolute if the Petitioner has not already done so, but this will require a short hearing before the District Judge.


10        
How long does it all take? 

 About 6 months if matters are entirely straightforward.  Sometimes it is appropriate to delay the application for Decree Absolute.  This will be explained to you if relevant to your particular case.

11         Can I stop the proceedings at any time? 

It is possible to stop proceedings at any time up until the grant of Decree Absolute or Decree of Judicial Separation.  If a reconciliation takes place and the parties live together for a period, or periods exceeding six months, then it may not be possible to continue with the divorce afterwards using the same ground, but new facts can be added, if appropriate.  This will be explained to you in more detail if it becomes relevant to your case.

       

If you require further information or explanation, please contact us.

 

Karen O’Neill & Co., Family Law Solicitors 2010