A Basic Guide to Getting a Divorce
The mechanics of obtaining a divorce are usually quite straightforward – particularly if the couple agrees that 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 spouse’s conduct during the marriage affect the financial distribution of assets. Nevertheless, the divorce itself and the division of assets might be dealt with 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 in England and Wales?
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 here 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 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) ‘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 but it can be at any time after separation, even if it didn’t occur before separation at all. It is not necessary to name the person with whom the adultery took place or indeed to involve them in the Court proceedings at all.
‘Behaviour’ has occurred where the other spouse has behaved in such a way that you cannot reasonably be expected to continue to live with them. The test is objective in that consideration is given to what an independent observer might make of the situation, but with subjective elements in that the individual circumstances of the spouses and the marriage are also taken into account. For behaviour to be such that it is not reasonable to expect the other spouse to continue to live with them does not have to be serious, violent or extreme behaviour. A combination of less obviously unreasonable behaviours 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. However following the well-publicised case of Mr & Mrs Owens in 2018, exaggerated, isolated incidents and mere “criticism” of the other party, may not be sufficient if the petition is defended.
4. If the marriage has irretrievably broken down and one of the 5 facts applies, what happens next?
A petition for divorce is prepared. This is the document by which the request for permission to divorce is made to the court and it sets out the grounds upon which the divorce is sought. Bear in mind that the courts have taken over divorce procedure from the Church and a lot of the old fashioned language is still used, hence “petition”.
It is often advantageous to try to obtain your spouse’s consent to the divorce and try to reach agreement over the contents of the petition before it is sent to the court and indeed protocols under which solicitors operate require this. For example, if your spouse agrees that the petition should be based on his/her behaviour, only a brief outline of the particular behaviour may be needed. Not saying all that might be said will generally not prejudice you and may perhaps avoid antagonising or unnecessarily upsetting your spouse. This helps reduce antagonism and helps ensure that the divorce is not contested and costs are not spent unnecessarily on arguing about amendments to a petition after it has been issued at court.
If the fact relied on is two years’ separation, please note that the other spouse’s consent is essential.
5. What does the petition look like?
Every petition follows the same “tick box” format. It contains basic information about names, addresses, occupations and dates of birth of the couple, together with the date and place of marriage, and a statement that the marriage has irretrievably broken down. It will also state the “fact” on which the Petitioner relies to prove the irretrievable breakdown and details (“particulars”) of that have to be given.
The petition will include a section (known as a “prayer” – more of that old fashioned language) which will state the request for permission to divorce. It may also include a request for an order that the other spouse pays the legal costs of the divorce; and must request 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, even by consent, so it has to be made now in order to protect their position.
The legal costs aspect relates to the costs of the divorce only and not the costs of dealing with financial or children issues as well. As such the amount in question is not usually substantial. This means that arguments about divorce costs are not generally recommended because the legal costs of arguing can easily exceed the amount of costs being argued about! It should be borne in mind that “costs follow the event” which means that if you are responsible for the divorce (that is, it’s your unreasonable behaviour, or your adultery) the court will usually order that you have to pay the legal costs incurred by your spouse in bringing the proceedings unless you have good reason not to pay them. In most cases it is possible to agree a figure for the costs before the petition is issued so that it is capped, and often a figure will be agreed based on both of you sharing the costs, particularly where you both want the divorce and the petition is more of a means to an end than anything else. It is also not unusual to agree to a divorce on the basis that there is a compromise on costs.
6. What about the children?
The Court is aware that it is often the children who suffer most when a marriage breaks down but at the same time they hope that the parents will come to an agreement between themselves about the arrangements there are to be for them – where they will live and what contact there will be with the other parent. They therefore do not intervene in matters relating to the children unless one of the parents makes a specific application to the court requesting that intervention, which is a separate set of proceedings outside of the divorce process.
After at least one year of marriage:
7.1 Either spouse may start the divorce. He or she is referred to as the “Petitioner”. The prescribed petition form is completed and then sent to the Court together with the original marriage certificate and the appropriate fee.
7.2 The Court will then “issue” the petition, which means it is stamped with a court seal and given a reference number, and then sent to (or “served on”) the other spouse, who is referred to as the “Respondent”. If the 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 will have 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, and whether any claim for costs is disputed.
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. The answer must be filed within the time limit or the ability to answer the petition will be lost.
Defended divorce proceedings which result in a fully contested hearing are extremely rare, mainly because of the requirement to agree where possible the content of a petition before issue. A defended petition will inevitably delay finalising the divorce, and will add a significant sum to the overall cost. Ultimately it will serve no real purpose because a judge will not generally force the couple to stay married to each other where one person does not want that. A judge has been known to observe that the divorce court is not the appropriate forum for seeking to save a marriage.
An unsuccessful Respondent will usually find that he or she has to pay the legal costs incurred by the Petitioner in dealing with the contested divorce, as well as their own legal costs.
7.4 NOTE that unless the consent of the Respondent is specifically required (where the petition is based on two years’ separation and consent), in order to be able to proceed with the divorce the Petitioner need only prove to the court that the Respondent has received the petition – a Petitioner cannot get a divorce without his/her spouse’s knowledge. The Respondent cannot frustrate the divorce process by not returning the acknowledgement because the Petitioner needs only to have the Petition personally served, and he/she can do this at any time after the eight days referred to above are up. A statement from the process server confirming that the Respondent was handed the petition (and therefore has knowledge of it) will allow the Petitioner to proceed with the divorce. A Petitioner who has to go to these lengths will usually get an order for the costs incurred by this because the courts actively discourage non-cooperation with court processes.
7.5 If the divorce is going ahead under the normal (non-contested) procedure and the Respondent returns the completed acknowledgement form to the court, the Court sends a copy to the Petitioner’s solicitor.
7.6 The Petitioner can then apply for the Decree Nisi to be pronounced, that is, for formal permission to dissolve the marriage. To do this, the Petitioner will prepare a Statement that confirms that the contents of the petition are true, and whether any circumstances have changed since the petition was first sent to court. Once signed by the Petitioner it will then be sent to the court with a request for a date for the Decree Nisi to be pronounced.
7.7 On receipt of the statement by the court, a judge will consider the petition and, if satisfied that the Petitioner has proved that the marriage has irretrievably broken down, will give a certificate confirming this and state that the Petitioner has permission to divorce. This permission will be formally pronounced in court on a date set by the judge. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. Where there is agreement about the legal costs of the divorce, neither the Petitioner or the Respondent has to attend the hearing. If the costs issue has not been resolved, the judge can deal with it here and the couple will need to attend to make their respective cases about it.
7.8 If the judge decides that the Petitioner has not proved that the marriage has irretrievably broken down, permission to divorce will not be granted. The petition will usually have to be amended, either to a different fact, or to provide more information, and served again on the Respondent, who will then have to file another acknowledgement form. Only then can the Petitioner reapply for decree nisi, and the judge will consider the petition afresh.
7.9 Having obtained permission to divorce, the divorce itself needs to be formally dissolved, either by:
a) no sooner than 6 weeks and 1 day after the date of Decree Nisi
the Petitioner applying for a final decree (“Decree Absolute”) by sending the appropriate form to court. This application will be processed and may sometimes be available as quickly as the same day, as the Petitioner has an automatic right to it. Once granted the marriage is officially dissolved;
b) 3 months after the Petitioner could first have applied for Decree Absolute
the Respondent applying for the Decree Absolute if the Petitioner has not already done so. Granting decree absolute is not automatic when it is the Respondent asking for it. The application will be considered by the Judge and can be opposed by the Petitioner. That may seem counter intuitive when the Petitioner will have started the process in the first place, but if there is good reason not to pronounce Decree Absolute, the application may not be granted. Conversely, the Respondent may sometimes seek confirmation from Petitioner that he/she will not apply for Decree Absolute, but it is much more difficult to prevent the grant in that situation because of the Petitioner’s automatic entitlement to it.
The main reason to delay the application for or granting of Decree Absolute is because financial issues are still outstanding. If one spouse were to die after decree absolute but before finalisation of the financial issues, the surviving (by then ex-) spouse would have to make a claim on the deceased ex-spouse’s estate, and that would be a lot more complicated than if they were still married. If the deceased ex-spouse had pensions, the surviving ex-spouse may well lose rights under those pensions which would have been automatically acquired as the deceased ex-spouse’s widow/er.
8. How much does the divorce cost?
The current fee payable to the Court on the presentation of a petition is £550.00 (correct as at June 2018). The solicitors’ fees for dealing with the divorce will depend upon the amount of time spent on the matter and the hourly rate at which they charge. Fees for dealing with financial issues are separate.
9. Are financial issues dealt with before the divorce is finalised?
It is not essential for financial arrangements to be completed by the time the divorce is final although, as indicated above, it is preferable. Frequently they will still be in the early stages and the application for decree absolute will simply be put on hold.
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:
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 and resolved 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, although it may take them into account.
Separation Agreements are particularly useful when the couple have decided to wait for two years before starting the divorce proceedings. An agreement of this type, while not binding, allows them to make interim arrangements and set out the financial basis for the separation and agree what is to happen about finances when the divorce does take place later on.
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, 2014, 2016, 2018