A Basic Guide to Getting a Divorce
The mechanics of obtaining a divorce nowadays are usually quite straightforward – particularly if the couple agrees the marriage is over. The difficulties tend to lie rather in resolving the related practical issues stemming from divorce such as how to separate, where to live, and arrangements for the children and any money matters.
Your attention will probably be concentrated on those related issues and the process of actually obtaining a divorce may seem blurred. The purpose of this guide is to outline a broad framework of the divorce process, to highlight key points and to set out the sort of timetable to expect.
There is a common misconception that divorce and financial settlements are part of the same procedure. This is not the case. Furthermore, many people wrongly assume that the person whom they hold responsible for the breakdown, such as in a case of adultery, will have their actions reflected in any financial settlement. Only in very rare cases does a party’s conduct during the marriage affect the financial distribution of assets. Nevertheless, your solicitors may be dealing with your divorce and the division of assets simultaneously as no final order in relation to finances can take effect until the marriage is dissolved on the granting of the Decree Absolute, as to which please see below.
1. Who can start divorce proceedings?
Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been a resident in England or Wales during the proceeding year. It does not matter where the couple was married.
2. On what grounds can divorce proceedings be started?
The only ground for divorce is that the marriage has irretrievably broken down, but there is a complication. A divorce will only be granted if one of the five facts laid down by law, proving irretrievable breakdown, is established.
3. What are the facts?
a) Your spouse has committed adultery and you find it intolerable to carry on living together.
b) Your spouse has behaved in such a way that it would be unreasonable to expect you to keep living together.
c) Your spouse has deserted you for a continuous period of two years or more.
d) You and your spouse have been living separately for a period of two 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 consents to the divorce.
Fact (a) ‘adultery’, and fact (b) ‘unreasonable behaviour’ are the two facts which are most often relied upon by divorcing couples. ‘Adultery’ is an act of sexual intercourse with a person of the opposite sex. For an act of adultery to be relied upon it must have taken place no more than six months before separation or at any time after separation. It is no longer necessary to name the person with whom the adultery took place or indeed to involve them in the Court proceedings.
‘Unreasonable behaviour’ has occurred where the other spouse has behaved in such a way that you cannot reasonably be expected to continue to live with him/her. The test is subjective and the Court will consider what is unreasonable to you. For behaviour to be ‘unreasonable’ in this context it does not have to be grave, violent or extreme behaviour. A combination of less obviously unreasonable behaviour can be sufficient. The kind of behaviour would depend on the facts of each case, but it can include such things as; nagging, verbal abuse, breakdown of sexual relations, a lack of affection and attention.
4. If the marriage has irretrievably broken down and one of the 5 facts applies, what happens next?
Your solicitors will draft a document for you known as a petition for divorce. This is the document by which the request for a divorce is made to the court and it sets out the grounds upon which the divorce is sought. It is often sensible to try to obtain your spouse’s consent to the divorce and try to reach agreement over the contents of the petition. For example, if your spouse agrees that the petition should be based on his/her unreasonable behaviour, only a brief outline of the particular behaviour may need to be given. Not saying all that might be said will generally not prejudice you and may perhaps avoid antagonising or unnecessarily upsetting your spouse. It is best to try to agree mild allegations of behaviour before the divorce papers are sent to the Court. This will help reduce antagonism and help ensure that the divorce is not contested and costs are not spent unnecessarily on arguing about allegations of behaviour.
5. What does the petition actually look like?
Every petition follows the same form. It contains the 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 will include a request for the divorce to be granted. It may also include a request for an order relating to the children; a claim regarding costs of the divorce; and an order for financial provision, although the latter does not mean that an application to the Court to deal with finances has to be made. However if it is not made here the person presenting the petition cannot make a financial claim later.
6. What about the children?
The Court is aware that it is often the children who suffer most when a marriage breaks down. They therefore consider the welfare of any children of the family and whether the arrangements made for their upbringing and welfare require Court intervention.
In order for the Court to do this, 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 person filing the petition usually completes the form (known as “Statement of Arrangements”). Preferably it should be sent to the other spouse before it is filed. However if agreement is not reached, this does not prevent the divorce from proceeding.
7.1 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 marriage certificate and the appropriate fee.
7.2 Within a few days of sending the petition and statement of arrangements to the Court, the Court will then send the documents to (or “serve”) the other spouse, who is referred to as the “Respondent”. A copy of the petition is also sent to anyone else named in the petition if it is based on adultery and that person has been named. They may be referred to as the “Co-Respondent”. If the Respondent (or Co-respondent) has instructed solicitors, the petition may be sent to them.
7.3 From the date the documents are received the Respondent has strict time limits to observe.
a) Within 8 days
He or she should send to the court a form called an “acknowledgment of service” which accompanied the petition. The form asks the Respondent whether he or she consents to the divorce or 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 extremely rare and a delay in finalising the divorce is inevitable.
Sometimes, if the Respondent defends a petition, a cross petition can also be made, and the divorce can continue under the usual procedure on the basis of the cross petition. Occasionally the divorce can proceed on the basis of “cross decrees” where both parties divorce the other.
7.4 If the divorce is proceeding under normal procedure, 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 form(s) of Acknowledgement of service.
7.5 If the Respondent is not defending the petition, the Petitioner can apply for the Decree Nisi to be pronounced.
A decree nisi is a conditional order of the Court, granting the divorce. It is the first decree of divorce. The divorce is not made final until later (see below). To make the application for decree nisi, 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 Decree Nisi to be pronounced.
7.6 If acknowledgements of service are not returned to the court
Proof that the Respondent and any named Co-Respondent have received the petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for someone to deliver the petition to the Respondent and any named Co-Respondent personally or, exceptionally, obtaining a court order that proof does not need to be given that the Respondent and Co-Respondent have received the petition. This is called “dispensing with service”.
7.7 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 are in order, gives a certificate confirming that the case for divorce has been proved and giving a date for the pronouncement of Decree Nisi. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. The couple does not have to attend court.
7.8 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 ask the Petitioner and the Respondent (who may or may not be 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 Welfare Officer to become involved. If a solution cannot be reached, this will delay the application for the final decree of divorce.
7.9 If the arrangements in relation to the children are settled between their parents:
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 appropriate form to court. This decree will be processed and may be available as quickly as the same day. Its effect is that the marriage is officially dissolved.
b) 3 months after the Petitioner could first have applied for Decree Absolute.
The Respondent may apply for the Decree Absolute if the Petitioner has not already done so. This step is not automatic and the application will be considered by the Judge. If there is good reason not to pronounce Decree Absolute, such as financial issues still being outstanding, the application may not be granted.
8. How much does the divorce cost?
The current fee payable to the Court on the presentation of a petition is £340.00. There is also an oath fee payable during the process of £7.00, and a fee of £45 is payable on the application for Decree Absolute. Your solicitors’ own fees for dealing with the divorce will depend upon the amount of time spent on your matter and the hourly rate which they are charging you. Fees for dealing with financial issues are separate.
9. Are financial issues dealt with before the divorce is finalised?
It is not necessary for financial arrangements to be completed by the time the divorce is final. Frequently they will still be in the early stages. A final order in relation to finances cannot be made until decree nisi has been granted, and it is usual to wait until financial issues have been resolved before the application for decree absolute is made, simply because it is likely to be in your interests to be a widow/er rather than a divorcee if your spouse should die before decree absolute.
However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements while the divorce goes through.
10. 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 “facts” of the divorce but they are not able to publish details of the adultery or unreasonable behaviour.
11. Alternatives to Divorce
If you would prefer to regularise your separation without actually divorcing there are two options available:
1. Judicial Separation;
2. Separation Agreement.
11.1 Judicial Separation
This involves a Court procedure which is virtually identical to that which applies to a divorce. The essential difference is that the Court pronounces a Decree of Judicial Separation rather than a divorce and therefore you and your spouse would remain married.
This procedure is useful if you have been married for less than 1 year, as it allows financial proceedings to be commenced if necessary.
11.2 Separation Agreement
Many couples prefer to reach an agreement about financial matters arising out of their separation without involving any Court procedures at all. The way this can be achieved is for them to sign a written legal document which incorporates the agreement they have reached. Commonly, such agreements deal with confirmation that the parties to the marriage are to live apart and the manner in which maintenance and/or property are to be dealt with. Whilst there are no restrictions on what can or cannot be included in such an agreement, it is important to bear in mind that should either person make a subsequent financial application to the Court, the Court is not bound by the financial arrangements contained in the Separation Agreement.
For more information on the Court’s approach to finances for divorcing couples, please see our separate Guide to Finances. For information on matters concerning Children, please see our Guide to Children Law. For further information on any of the matters raised here, please contact the Family Department at Stafford Young Jones.
© Stafford Young Jones 2005, 2011