Divorce or relationship breakdown is a very difficult and sensitive time for all involved. It’s natural if you are considering a divorce to worry about the future; sorting out your money, your family home and protecting your children. We want to help you decide what is right for you and understand exactly what is involved when undertaking divorce proceedings.
How does divorce work?
You are able to issue divorce proceedings if you have been married for over a year, provided one or other of you has lived in England or Wales during the whole of the preceding year or is domiciled here. It does not matter where you were married. In order to be granted a divorce, you have to demonstrate that the marriage has irretrievably broken down. You can prove this in five ways:
- Your spouse has committed adultery and you find it intolerable to continue to live together
- Your spouse has behaved in such a way that it would be unreasonable to expect you to continue to live together
- Your spouse has deserted you for a continuous period of two years or more
- You and your spouse have lived separately for two years or more and your spouse agrees to the divorce
- You and your spouse have been living separately for five years or more, whether or not your spouse consents to the divorce
The first steps
These will depend on your particular circumstances. It is often sensible to try to obtain your spouse’s consent to a petition for divorce and to try and reach an agreement over its contents. For example, if you agree that the basis of the divorce is unreasonable behaviour, only a brief outline of the particular behaviour may need to be given in court.
When you start divorce proceedings, you will need to complete a document called a petition and send that to the court together with your marriage certificate. The petition will contain basic information such as your names, addresses, ages of your children, a statement that the marriage has irretrievably broken down and the fact upon which you rely to prove this (from the list above).
- After one year of marriage — either you or your spouse may start a divorce. A petition is completed and sent to the court together with the marriage certificate. A court fee is payable.
- Within a few days the court will forward a copy of your petition to your spouse, (the “respondent”). A copy of the petition is also sent to anyone else named in an adultery petition (the “co-respondent”). If the respondent, or co-respondent, has instructed solicitors the petition may be sent to them.
- From the date that these documents are received, your spouse has strict time limits to observe. Within 8 days he or she must return the acknowledgement of service form, which accompanied the petition, to the court. This form asks your spouse whether he or she intends to defend the petition and whether any claim for costs is disputed.
- Within 29 days of receiving the petition, whether or not an acknowledgement of service has been returned, your spouse must file a defence (called an “answer”) if he or she intends to defend the petition. If the petition becomes defended the procedure set out below does not apply. Defended divorce proceedings, resulting in a fully contested hearing are very rare. In such cases, a delay in finalising the divorce is inevitable.
- Within a few days of receiving the acknowledgement of service from your spouse (and co-respondent if applicable) the court will forward a copy to us as your solicitors.
- If an acknowledgement of service is not returned to the court, proof that your spouse (and co-respondent) has received the petition will have to be obtained before you can take the next step. This is likely to mean that the petition must be delivered personally to your spouse. Exceptionally, a court order may be obtained stating that proof that your spouse has received the petition is not needed. This is called “dispensing with service”.
- If your spouse is not defending the petition, you can apply for a decree of divorce (decree nisi) to be pronounced. We would prepare a statement in support for you to sign confirming that the contents of the petition are true. The statement will also detail any circumstances which have changed since the petition was filed. This will then be sent to the court with a request for a date for the decree nisi to be pronounced.
- On receipt of your statement and application, a district judge will decide whether you are entitled to a decree. If he is not satisfied, he may ask you to file further evidence in support of the petition. Once he is satisfied, the court will fix a date for the decree nisi to be pronounced and notify both of you through your solicitors. This date is likely to be a few weeks after the application is lodged. Neither of you need attend court although sometimes you may wish to do so if there is an argument about costs.
- Once six weeks and one day have passed since the date of decree nisi, you may apply for decree absolute by sending the appropriate form to the court.
- If you do not apply for decree absolute, then 3 months after the date when you could first have applied for decree absolute, your spouse may do so.
- After the decree nisi has been made absolute you will be free to remarry. Note that upon remarriage you may lose important rights to claim financial provision within divorce proceedings, you should therefore always check with your solicitor in good time before remarrying.
Sorting out the finances
Financial discussions do not need to be completed by the time the divorce is final. Sometimes these will still be in the early stages if the finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements.
Contact our Family Law specialists
Divorcees who have obtained spousal maintenance orders in their financial settlements are likely to have an inflation increase provision built into their order.
The number of unmarried cohabiting couples is on the rise, one way to avoid uncertainty and arguments in the future is to have a cohabitation agreement.