Partner Claire Dyer, in our leading Family Law team, outlines the stages and key considerations involved when divorcing.
Obtaining a divorce is usually quite straightforward, particularly if parties agree that the marriage is over. Any difficulties that arise tend to relate more to resolving the practical issues such as how to separate, where to live, arrangements for any children and financial matters.
Since you will be concentrating on these related issues the process of actually obtaining the divorce can seem more complicated. Below, we look to outline and explain the broad framework of the divorce process, to highlight key points and to set out a realistic timetable.
Who can start divorce proceedings?
Anyone who has been married for over a year can start divorce proceedings, provided he or she can satisfy one of the criteria listed below. It does not matter where the marriage took place.
- Both spouses are habitually resident in England or Wales.
- Both spouses were last jointly habitually resident in England or Wales and one of them still resides here.
- The spouse not starting the proceedings is still habitually resident in England or Wales.
- The spouse starting the proceedings is habitually resident in England and Wales and has been for the past 12 months.
- The spouse starting the proceedings is domiciled in England or Wales and has been residing here for at least 6 months.
- Both parties are domiciled here.
On what grounds can a divorce petition be started?
The only ground for divorce is that the marriage has irretrievably broken down. In order to prove this the person seeking the divorce, called the Petitioner, needs to establish one of the following five facts laid down by law:
- The other spouse (called the Respondent) has committed adultery and the Petitioner finds it intolerable to continue living with him or her.
- The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him or her.
- The Respondent has deserted the Petitioner for a continuous period of two years or more (a petition on this basis is exceedingly rare).
- The parties have been living separately for two years or more and the Respondent consents to the divorce.
- Both parties have been living separately for five years or more, whether or not the Respondent consents to the divorce.
What about the children?
The law encourages couples to try and agree arrangements for any children in the event of a divorce. The court will not become involved regarding the arrangements for any children unless or until either parent makes a separate application under the Children Act 1989. The names and dates of birth of the children can be included in the Petition, but there is no obligation to include this information.
What happens next?
The document which starts the proceedings, which is called the petition, must be prepared. It is recommended practice to try to agree the content of the petition with the Respondent, but certainly to give him or her an opportunity to see it before the proceedings are commenced. This can speed up the process and make the proceedings less acrimonious.
Every petition follows the same form. It contains basic information about names, addresses, ages of any children and a statement that the marriage has irretrievably broken down. It also states the ‘fact’ which is being relied on with supporting information.
The petition also has a section (known as the ‘prayer’) which includes the request for the divorce to be granted and for orders for financial provision and any claim for costs in relation to the divorce. A request for the full range of financial orders is quite standard and does not necessarily mean that such orders will be pursued. It is sensible to try and agree how the costs will be paid/shared before the proceedings are commenced if possible.
Once the petition is completed it is sent to the court, together with the Marriage Certificate, to be ‘issued’ (processed by the court and allocated a case number). A court fee is payable.
All petitions must now be issued in one of 11 divorce centres around the country. The correct court will be ascertained from your post code. The divorce centre for London and the South East is at Bury St Edmunds.
How long will it take?
Within a few days of sending the petition to the court the Respondent will be sent a copy of it.
Within seven working days of receiving the petition, the Respondent should file at court a form called an ‘Acknowledgement of Service’. This form asks the Respondent whether he or she intends to defend the petition and whether any claim for costs is disputed.
If the Respondent intends to defend the petition (and whether or not an Acknowledgement has been filed) he or she must within 28 days of its receipt (longer if the documents have to be sent to an address abroad) file a defence called an ‘Answer’. This is a strict deadline. 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.
Shortly after receiving the Acknowledgement of Service from the Respondent, the court sends a copy of it to the Petitioner’s solicitor.
If the Respondent does not return an Acknowledgement of Service to the court the Petitioner will have to obtain proof that the Respondent has received the petition before he or she can take the next step. This may involve arranging for someone to deliver the petition to the Respondent personally or, exceptionally, obtaining a Court Order that proof does not need to be given that the Respondent has received the petition. This is called ‘dispensing with service’.
If the Respondent is not defending the petition the Petitioner can apply for the Decree Nisi to be pronounced. The Petitioner’s solicitor prepares a short Statement for the Petitioner to sign confirming that the contents of the petition are true. The Statement also states whether any circumstances have changed since the filing of the petition. The Petitioner will sign a statement of truth and the Statement will then be sent to the court with a request for a date for the first decree of divorce (‘Decree Nisi’) to be pronounced.
When the Court receives the application for a date for pronouncement of the Decree Nisi and the Statement, a Court Official looks through the papers and, if satisfied that the Petitioner has proved the content of the Petition, gives a Certificate for the Decree Nisi to be pronounced. Both the Petitioner and the Respondent (through their solicitors) are then advised of the date fixed for Decree Nisi. The date is likely to be a few weeks after the application is lodged. There is no requirement to attend court, unless there is a dispute about costs, in which case the Decree Nisi hearing can be transferred to a more local court.
Six weeks and one day after the date of Decree Nisi the Petitioner may apply for the final decree (‘Decree Absolute’) by sending the appropriate form to the court. There can, however, be advantages in delaying this application until financial matters have been resolved. If an application is made, the decree will be granted and can be available as quickly as the same day. The Decree Absolute terminates the marriage.
If the Petitioner does not apply for the Decree Absolute the Respondent may apply for it three months after the Petition could first have applied. A fee is payable for this.
Generally an undefended divorce takes between four and six months.
Are financial issues dealt with before the divorce is finalised?
It is not necessary for financial issues to have been resolved by the time the divorce is final. Frequently negotiations will still be in the early stages if finances are complicated. However, it is not uncommon for the final stage of the divorce, the decree absolute, to be delayed until the financial issues have been resolved.
Urgent issues, such as temporary maintenance arrangements, can be addressed by the court once the proceedings have started, whether or not a decree has been obtained.
Are the proceedings public?
Court proceedings in family proceedings are usually private. Accredited members of the press are allowed to attend some court hearings, but are restricted on what they can publish. They are able to publish the fact that a divorce has been pronounced and the basis for the divorce, but are not able to publish details of the alleged adultery or unreasonable behaviour.
For further information or legal advice, please contact firstname.lastname@example.org or call 0118 951 6800.
Since this article was written, the Divorce, Dissolution and Separation Act 2020 has come into force which brings a ‘no fault’ divorce system to England and Wales from 6 April 2022. For further details, please see our blog article ‘No Fault Divorce’ - A Practical Guide’ and/or contact a member of our Family Law team for further advice. This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.