Who can start divorce proceedings
Anyone who has been married for over one year, provided one spouse is either domiciled here or has been resident in England or Wales during the preceding six months. It does not matter where the couple were married.
The only ground for divorce is that the marriage has irretrievably broken down.
The breakdown is currently proved by showing that one or more of the 5 facts is established. Changes to the current system are anticipated in August 2021 which will change the facts that can be relied upon, making the system 'No Fault' based.
What are the five facts laid down by law proving the marriage has irretrievably broken down.?
Your spouse has had sexual intercourse with a person of the opposite sex and you find it intolerable to continue living together. This is known as Adultery.
Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
Your spouse has deserted you for a continuous period of 2 years or more.
You and your spouse have been living separately for a continuous period of 2 years the divorce is agreed.
You and your spouse have been living separately for 5 years or more. Consent of the other spouse is not required.
If the marriage has irretrievably broken down, and one of the 5 facts applies, what happens next?
This will depend upon your particular circumstances, but in most cases the content of the petition is agreed between solicitors to include who will pay the costs of the divorce.
What does the petition actually look like?
Every petition follows the same form. It contains basic information about names and addresses of the parties, details taken from the marriage certificate and a statement that the marriage has irretrievably broken down.
What about the children?
Children are not included in the divorce process at all. It is recognised that arrangements for the children's care should not form part of the dissolution of the marriage contract. Those arrangements, if they cannot agreed by parents, will be dealt with entirely separately to the divorce.
How much does the divorce cost?
Provided that the divorce is consensual and undefended, your total costs (including the Court fee and VAT) will not normally exceed £1,650.
Are financial issues dealt with before the divorce is finalised?
It is usual practice to get the divorce started in the first place and then simultaneously address financial matters. This is primarily because a Decree Nisi is required to conclude a financial settlement.In many cases the parties will agree to delay the final decree (Absolute) until financial matters have been concluded. This provides various protections to the parties, all of which will be discussed with you.
Timetable for divorce proceedings
After one year of marriage.
Either spouse may start the divorce. He or she is referred to as the 'Petitioner'. The petition is completed and then sent to the Court together with the marriage certificate. A fee, currently £550, is payable unless the Petitioner is being advised under the Legal Help Scheme or has limited resources. In that document you will specify whether you wish for the other spouse to pay some or all of the costs of the divorce that you will incur.
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 the 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.
From the date the documents are received the Respondent has strict time limits to observe.
Within 8 days
He or she should send to the Court a form called the 'Acknowledgement of Service' which accompanies the petition. The form asks the Respondent whether they intend to defend the petition and whether they agree to pay costs of the petitioner if they are sought.
Within 29 days of receipt
(Longer if the documents have been 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. The petition then becomes defended and the procedure outlined below does not apply. Defended divorce proceedings result in a fully contested hearing in open Court where press can attend thankfully, are very rare indeed. With defended divorce a delay in finalising the case is inevitable.
Within a few days of receiving the Acknowledgement of Service
The Court will send to the Petitioner's solicitors a copy of the form(s) of Acknowledgement of Service.
If the Respondent is not defending the petition, the Petitioner can apply for the Decree Nisi to be pronounced.
The Petitioner's Solicitors prepare a Statement in Support confirming that the contents of the petition are true. It will also state whether any circumstances have changed since the filing of the petition and it will then be sent to the Court with the request for a date for the first decree of divorce ('Decree Nisi') to be pronounced. At that stage the petitioner will say whether they wish to pursue costs from the other party and will highlight where such costs have been agreed (if relevant) in the acknowledgment form.
What does a Decree Nisi look like? This is a document produced by the Court. At the top it will have details of the parties, the case number allocated by the Court and, the name of the Court dealing with the divorce. A statement will be included in the document that says the marriage: has broken down irretrievably and decreed that the said marriage be dissolved unless sufficient cause be shown to the Court within six weeks from the making of this decree why such a decree should not be made absolute. There will be a note on the decree that confirms this is not the final decree.
If the Acknowledgement of Service is not returned to the Court or the Respondent refuses to engage with the process?
If a petition is issued using the fact of unreasonable behaviour or 5yrs separation, co-operation of the other spouse is not required. Proof that the Respondent has received the petition will be required which may involve arranging for someone to deliver the petition personally or by obtaining a Court order that proof does not need to be given. This is called "dispensing with service". The petitioner will then be able to take the next step regardless of whether the acknowledgment is returned or spouse co-operates.
On receipt by the Court of the application and the Statement in Support a date is fixed for pronouncement of the Decree Nisi.
The District Judge looks through the papers and if they are in order, 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. Depending on the Court's diary, the date is likely to be a few weeks after the application is lodged. The couple do not have to attend Court as this process simply involves the Judge reading out the parties’ names in Court on this date. The Judge will decide on this day whether to award costs to the petitioner if they have been sought.
What then happens?
If agreement has been reached, the District Judge is unlikely to interfere. If agreement has not been reached, the District Judge may ask the Petitioner and the Respondent (accompanied by their Solicitors) to attend an informal appointment to explore a solution to the difficulties. The District Judge may also ask for a Court Reporting Officer to become involved. If a solution cannot be reached, this can delay the application for the final decree of divorce.
6 weeks and 1 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. This step is not automatic. This Decree will be processed and may be available as quickly as the same day.
3 months after the Petitioner is able to apply for Decree Absolute
The Respondent may apply for the Decree Absolute if the Petitioner has not already done so. This is a more complicated process and is one on which legal advice should be obtained before making such an application.
What does a Decree Absolute look like?
This document is produced by the Court. As with decree Nisi it contains details of the case and the parties. The document will contain a statement that says the marriage be dissolved unless sufficient cause be shown to the Court within six weeks from the making thereof why the decree should not be made absolute, and no such cause having been shown, it is hereby certified that the said decree was on [date] made final and absolute and that the said marriage was thereby dissolved. There will be notes on the document relating to affects on inheritance under a will and the appointment of a guardian.