Divorce

Ending a marriage and separation

It is a sad fact that one in three marriages now end in divorce. It is probably true that even more non-married relationships fall apart. Divorce itself is not a particularly complex legal procedure, but family law solicitors are needed to help pick up the pieces, sort out the finances and make provisions for the children. It is amazing how such affectionate relationships can turn so bitter if things go awry.

If things do go wrong, then it is important for both married and unmarried couples to know where they stand, and that is what we have endeavoured to cover in this section of the site. We also have a section specifically for unmarried couples, where the legal rules are very different. We have also put together a panel of divorce and family law solicitors who can provide you with more help.

The Basis for Divorce

There is now just one ground for divorce in England and Wales, and that is that the marriage has broken down irretrievably.

The five facts of divorce

If either spouse feels that they cannot continue with their marriage, either the husband or wife can apply to the court in order to have it dissolved. This application is called the Petition and the person who makes it the Petitioner. The other spouse is named as the Respondent.

In order to prove to the court that the marriage has broken down irretrievably, the Petitioner needs to give evidence in writing (in the divorce Petition) of any one of five facts. Subsequently this evidence needs to be accepted by the court.

These facts are:

• Adultery
• Unreasonable behaviour
• Two years of desertion
• 2 years of separation
• 5 years of separation
  

The majority of divorces are undefended and are granted on one of the first two facts. By and large this is because the other 3 facts require the couple to have been living apart for at least 2 years, which is not applicable in many cases. Although the only fact that needs the respondent’s consent is separation for 2 years, for practical purposes you will need to agree that the marriage has fatally broken down. It is also wise to make sure that both parties know of the contents of the petition so that things can be resolved amicably and any expensive or traumatic disputes can be avoided later.

The Divorce Procedure

Step One - Filing the Petition

This is the request to the court to grant the divorce and gives the court all the facts about the parties and the reason for seeking the divorce - one of the five facts already discussed. The person applying for the divorce is referred to as the Petitioner. The other spouse is referred to as the Respondent. If there is a third party they are referred to as a Co-Respondent.

If there are children (under 16, or over 16 and still in education) then, in addition to the Petition, a Statement of Arrangements for the children needs to be completed to give details of the proposed arrangements for the children after the divorce. Three copies of these forms need to be completed – one couple for the divorced husband and wife and one to remain in the courts. An additional copy of the petition will be needed if adultery is the reason for the divorce, for the person the offending husband or wife committed the adultery with, i.e the co-respondent.

These documents, together with the marriage certificate and a £340 fee, are sent to the Court to start the divorce process.

Step Two - Service of the Petition

The Court will check the documentation and if they are satisfied that it complies with all the requirements they officially issue the divorce petition and send it to the Respondent, together with a Statement of Arrangements and a form for the Respondent to complete and return to the Court (Acknowledgement of Service form).

Step Three - Acknowledging service of the Petition

The Respondent should return the form to the Court within 7 days, indicating whether or not they wish to dispute the divorce proceedings. If they do want to dispute it they will have to file another form called an Answer within 28 days of receiving the Petition.

Step Four - Confirming the facts in your Petition

The Court will send a copy of the Acknowledgement of Service form to the Petitioner, who must then swear an affidavit (just legal jargon for a written statement sworn under oath to be true) confirming the facts in the original Petition.

Step Five - Pronouncement of Decree Nisi

A decree nisi is a legal document which does not come into force until a certain condition is met, and in this case serves as a provisional divorce order.

If the court is happy with all the documentation they will set a date on which the decree nisi will be pronounced in court. The parties are not divorced at this time however, as there is a second stage required to finalise the divorce (the decree absolute).

It is not usually necessary for the parties to attend court to hear the decree nisi being pronounced, unless the parties are unable to agree on arrangements for the children. Once the decree nisi hearing has taken place, both parties will be issued with a decree nisi certificate.

Step Six - Application for the Decree Absolute

43 days (6 weeks and a day) after the decree nisi is pronounced the Petitioner can apply for the decree absolute. There is a standard application form and a fee of £45. Only once this has been granted are the parties officially divorced. If the Petitioner fails to apply the Respondent can apply 3 months later.

Step Seven - Receipt of the Decree Absolute

Only once the decree absolute has been granted and sealed by the court are the parties officially divorced. This is an important document and it should be kept in a safe place.

The whole process is a lengthy one which will take months to complete due to the number of legal forms involved. The exact duration will depend on how quickly forms are returned and the willingness of each party to divorce.

Further advice

The necessary forms can be filled in without the assistance of a solicitor, but it may be advisable to seek legal advice before you enter into divorce proceedings. If you want further advice on divorce from a specialist solicitor, use our free Find a Solicitor to find affordable local legal advice.

Alternatively, if you need help with the financial side of divorce, you can speak to an independent financial advisor.