Ending a marriage and separation
This information is for married couples who are separating. We also have a section specifically for unmarried couples
, where the legal rules are very different.
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:
The majority of divorces are undefended and are granted on one of the first two facts. 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 both parties will need to agree that the marriage has fatally broken down in all cases. 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
The petition 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, which will be one of the aforementioned five facts.
The person applying for the divorce will need to fill out the divorce petition form, and 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.
Two copies of these forms need to be completed – one for the spouse 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. The petitioner should also keep one for themselves.
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 8 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.
The respondent also has the right to file for their own divorce against the petitioner at this stage. If this happens, or the divorce is disputed, a hearing will usually take place.
Step Four - Confirming the facts in the 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.
To ask for a decree nisi to be issued, you will have to fill in the decree nisi application form. If the divorce is disputed, you should fill out section B.
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.
If your application for a decree nisi is rejected then you will receive a form telling you so. The form will tell you what to do next, whether you need to provide more information or attend a hearing.
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, for which another form is required. 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.
The necessary forms can be filled in yourself, but it may be advisable to seek legal advice before you enter into divorce proceedings. Our Instant Law Line service offers quick, easy, unlimited telephone legal advice from just £7.99 a month.
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