Divorce

The mechanics of obtaining a divorce are usually quite straightforward - particularly if the couple agree that the marriage is over. The difficulties tend to lie with resolving the practical issues, such as how to separate, where to live, arrangements for the children and any money matters. The framework of the divorce process, are set out below. Judicial Separation is an alternative to divorce, used for example where the parties have a religious objection to divorce, or perhaps are elderly with no need to consider remarriage. The proceedings are essentially the same, except there is a Decree of Judicial Separation instead of Decrees Nisi and Absolute. The parties remain "married", but legally separated.

1.   Who can start divorce proceedings? Anyone who has been married for over a year provided one or other of the couple lives in England & Wales. It does not matter where the couple were married and a petition (the application) can be made to any court.

2.   On what grounds can a divorce petition be started? The only ground for divorce is that the marriage has irretrievably broken down, but this has to be proved using one of the five facts laid down by law. These are

a)   Your spouse has committed adultery and you find it intolerable to continue living together.

b)   Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.

c)   Your spouse has deserted you for a continuous period of 2 years or more.

d)   You and your spouse have been separated for 2 years or more and your spouse agrees to the divorce.

e)   You and your spouse have been living separately for 5 years or more, whether or not your spouse agrees to the divorce.

4.   If the marriage has "irretrievably broken down" and one of the 5 facts applies, what happens next? This will depend upon your particular circumstances. It is often sensible to try to obtain your spouse's consent to the petition and to try to reach agreement over its contents. If your spouse accepts that the petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour needs to be given. Leaving some matters out of the Petition would not normally prejudice you, and mild petitions are actively encouraged in the interests of keeping matters as amicable as possible.

5.   What does the petition look like? Every petition follows the same form. It contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down. It will also state the "fact" on which it is intended to rely.

The petition will include a section (known as a "prayer") which includes a request for the divorce to be granted. It may also include a request for an order relating to children; a claim regarding costs of the divorce; and a claim for financial provision. The financial claim does not mean that the petitioner will receive money or property, but the list of claims is included so that the Court can consider the financial side of the divorce, even if the claims are later dismissed as part of a “Clean Break Order”.

6.   What about the children? A form is sent to the Court with the divorce petition, which will outline the arrangements relating to the children. The law encourages couples to try and agree those arrangements. The form (known as "Statement of Arrangements") is sent in with the Petition but is for the Court’s information and is not binding on the parties. If agreement is not reached, this does not prevent the divorce from proceeding and the other person’s signature is not required to start divorce proceedings.

7.  How much does the divorce cost? This depends on the finances of each party to the divorce. Those who are unemployed or on a low income may be eligible for a reduction or waiver of the Court fees, but otherwise the Court fees for divorce are £180 to issue the Petition and £30 for the Decree Absolute. Each case is different but, on average, the legal costs for a straightforward divorce will be around £350 - £450.

8.   Are financial issues dealt with before the divorce is finalised? It is not necessary for financial discussions to be completed by the time the divorce is final, although the application for the Decree Absolute may be postponed until financial matters are resolved.

9.   Are the proceedings public? Court proceedings in family law are usually private. This means that the public and press are not allowed access to the Court papers. However, the press are able to publish the fact that a divorce has been pronounced. The information that they may disclose is very limited. They may disclose the "fact" of the divorce but they are not able to publish details of the adultery or unreasonable behaviour.

10.   What happens and when?

10.1   After one year of marriage: Either spouse may start the divorce. He or she is referred to as the "Petitioner". The Petition and Statement Of Arrangements about the children are completed and then sent to the Court together with the original marriage certificate. The Court issue fee is payable unless the Petitioner is entitled to a waiver or remission of fees.

10.2   Within a few days of sending the petition to the Court: The court sends a copy of the Petition and Statement Of Arrangements 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 Solicitors, the Petition may be sent to them.

10.3   From the date the documents are received the Respondent has strict time limits to observe: -

a)   Within 8 days: He or she would send to the Court a form called an "Acknowledgement Of Service" which accompanied the Petition. The forms asks the Respondent whether it is intended to defend the Petition, whether any claim for costs is disputed and whether orders affecting the children are sought.

b)   Within 29 days of receipt (longer if the documents have to be 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, file a Defence (called an "Answer"). 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.

10.4   Within a few days of receiving the acknowledgement of service from the Respondent (and Co-Respondent): The Court sends to the Petitioner's solicitor a copy of the Acknowledgement Of Service.

10.5   When the Acknowledgement is received (if the Respondent is not defending the petition): The Petitioner can apply for the Decree Nisi to be pronounced. The Petitioner's solicitor prepares an Affidavit for the Petitioner to swear confirming that the contents of the Petition are true. It will also state whether any circumstances (including those relating to the children) have changed since the filing of the Petition. The Petitioner will swear the Affidavit before a Solicitor or Court Official 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. For Judicial Separation, the application at this stage is for a decree of Judicial Separation, not a Decree Nisi.

10.6   If acknowledgements of service are not returned to the Court? Proof that the Respondent (and any named Co-Respondent) has received the Petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for the Court Bailiff or a Process Server to deliver the Petition to the Respondent (and Co-Respondent if applicable) personally. If this is not suitable, then applications for substituted or deemed service, or to dispense with service, are possible, depending on the particular circumstances of each case.

10.7  On receipt by the Court of the application for a date for pronouncement of the Decree Nisi and Affidavit: The District Judge looks through the papers and, if they seem in order, gives a date for the Decree Nisi to be pronounced. The District Judge may also indicate an intention to make an order for costs at the Nisi hearing. The Petitioner and the Respondent (through their Solicitors) are advised of the date fixed for Decree Nisi, which is likely to be several weeks ahead. Neither party has to attend Court, unless they want to stop the divorce/judicial separation proceedings, or wish to object to an order for costs. The Decree Nisi is only the first stage and the parties are not yet free to remarry. In Judicial separation proceedings, the decree made by the Court at this stage is the final decree, but the parties are still "married". In both cases, the Court now has the power to deal with the main financial aspects.

10.8   What normally happens with regard to the children? If agreement has been reached, the District Judge is unlikely to interfere. If agreement has not been reached, the District Judge may place conditions on the granting of a Decree Absolute - for example, require another Statement of Arrangements in respect of the Children to be filed. Under the Children Act 1989, either party may apply to the Court to decide issues such as Residence or Contact (custody/access) if there is a dispute. This may delay the divorce procedure.

10.9   If there are no restrictions on the Decree Absolute application: -

a)   6 weeks and 1 day after the date of Decree Nisi: - The Petitioner may apply for the final decree (Decree Absolute) by sending the application form to the Court with the fee or application for waiver of fees. This step is not automatic. Usually, the court will process this application within a week or so.

b)    3 months after a) above: - The Respondent may apply for the Decree Absolute if the Petitioner has not already done so.

12.   Can the proceedings be stopped? It is possible to stop proceedings at any time up until the grant of Decree Absolute or Decree of Judicial Separation. If a reconciliation takes place and the parties live together for a period, or periods exceeding six months, then it may not be possible to continue with the divorce/judicial separation subsequently using the same facts.

It is important to remember that every case is different and the timetable and costs guidelines may vary from case to case.

© Karen O’Neill & Co., Family Law Solicitors   2004