Divorce and separation is a major step and can have enormous emotional and financial consequences. We have put together this guide to assist you in understanding what these might be. However, no two cases are ever the same, so if you have any queries please speak to the person dealing with your case.
SECTION 1 – DIVORCE
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 resident in England or Wales during the preceding year. If either party has already issued proceedings in another Country then you cannot issue a further application in England and Wales. It does not matter where the couple were married.
On what grounds can a Divorce Petition be started?
The only ground for divorce is that the marriage has irretrievably broken down but there is a complication: divorce will only be granted if one of the five facts laid down by law proving irretrievable breakdown is established.
What are the facts?
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 two years or more.
d) You and your spouse have been living separately for two years or more and your spouse agrees to the divorce.
e) You and your spouse have been living separately for five years or more whether or not your spouse consents to the divorce.
Note: Whilst the procedure for ending a Same Sex Marriage is much the same there is one exception, the ‘fact’ of adultery is NOT applicable.
After one year of marriage
a) Either spouse may start the divorce. He or she is referred to as “the Petitioner”. The Petition is completed and sent to the Bury St. Edmunds Divorce Centre, together with the Marriage Certificate. A fee, currently £550.00, is also payable unless the Petitioner is eligible for a full or partial exemption from payment of the fee upon completion and acceptance by the Court of a separate application form (EX160) for which supporting financial documentation is required. Alternatively you may use the ‘on-line’ process at: https://www.gov.uk/apply-for-divorce that will be slightly different to the steps set out below although the legal principles will remain the same.
b) The Court sends a copy of the Petition and an Acknowledgement of Service form to the other spouse, referred to as “the Respondent”. A copy of the Petition is also sent to anyone named in an 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.
c) Within seven days of being served with the Petition, the Respondent should return the “Acknowledgement of Service” form to the Court. The form asks the Respondent whether or not they intend to defend the Petition, whether or not any claim for costs is disputed and (if appropriate) whether they ‘consent’ to the divorce.
d) Within a few days of receiving the Acknowledgement of Service from the Respondent, the Court sends a copy of the form of Acknowledgement of Service to the Petitioner’s solicitors. However, this step is now sometimes taking 6 weeks or so.
e) The Petitioner’s solicitor prepares a Statement for the Petitioner to sign, confirming that the contents of the Petition are true. It will also state whether any circumstances have changed since the filing of the Petition. It is then sent to the Court with a request for a date for the first decree of divorce (“Decree Nisi”) to be pronounced.
f) If no Acknowledgement of Service is 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. This is called “dispensing with service”.
g) The District Judge looks through the papers and if they seem in order gives a Certificate for the Decree Nisi to be pronounced. Both the Petitioner and the Respondent (through their solicitors if applicable) 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 but either may attend if they wish to.
h) The Petitioner may apply for the final decree (“Decree Absolute”) by sending the appropriate form to the Court six weeks and one day after the date of Decree Nisi. This step is not automatic. The decree will be processed and may be available as quickly as the same day.
i) Three 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.
Despite the Decree Absolute in the divorce, until there is a Final Court Order terminating each party’s financial claims against the other, either party can always claim against the other or from their Estate after death. If you remarry then your claims against your former husband/wife are automatically terminated upon your remarriage, although they can still bring a claim against you provided they have not themselves remarried. Therefore, if you have an outstanding financial claim against your first husband or wife, do not remarry without first getting legal advice. Any claim to each others’ pension automatically ends on pronouncement of Decree Absolute.
How long does it take?
This varies from Court to Court. Undefended divorces take approximately 5 to 6 months. The financial side of divorce may take longer – 6 to 18 months.
Try to save your marriage – for guidance and/or counselling contact Relate (0300 100 1234) to help with your relationship.
• The divorce can be stopped at any time, up until the point of pronouncement of Decree Nisi, thereafter it would have to be a mutual decision between yourself and your spouse that neither of you will apply for the Decree Absolute.
• You cannot remarry until you have the Decree Absolute.
This can take place where the parties do not wish to divorce, for example on religious grounds but wish to formalise their separation and be ‘relieved’ of the requirement to live together. The process is very similar to that for divorce, save that only one Decree is pronounced – that of Judicial Separation and the parties remain married.
SECTION 2 – SEPARATION AGREEMENT
This is an alternative to divorce but may lead to divorce after two years with the other party’s consent. It does however depend upon both parties obtaining legal advice and agreeing to sign a document. This is only usually appropriate when the marriage breakdown is amicable or friendly or within one year of the date of marriage. Any financial agreement can be written into the Agreement and the finances settled at the time of the agreement or left until the divorce. Termination of future financial claims against each other can also be written into the Agreement. Any contact arrangements in respect of children can also be written into the Agreement.
A Separation Agreement is not legally binding upon the parties and will only become so in a future divorce if:-
(i) both parties have had legal advice;
(ii) there is sufficient disclosure of information to each other and
(iii) at the time of the divorce the Court considers that the contents of the Agreement are reasonable.