In England and Wales, you cannot issue divorce proceedings until you have been married for at least one year. There is only one ground for divorce and that is “irretrievable breakdown”. Although there have been calls for divorce without fault, you must still provide evidence that the marriage has irretrievably broken down by one of five facts:
- Adultery- i.e. an act of sexual intercourse with a person of the opposite sex
- Unreasonable behaviour
- 2 years separation with consent
- 5 years separation
- Desertion when one spouse has deserted the other spouse for a continuous period of at least 2 years
Although the actual process for getting divorced is relatively straight forward, there are complicated issues that often accompany the divorce process. Therefore, it is vitally important that you obtain appropriate legal advice at the earliest opportunity.
Step by Step Guide to the Divorce Procedure
Step 1: Divorce Petition – This is the document that sets out your intention to divorce and the grounds for divorce. The party issuing proceedings will be referred to as the ‘Petitioner’ and their spouse as the ‘Respondent’.
Statement of Arrangements for Children- If you have children, this form will set out the arrangements which you have agreed with your spouse in relation to the children and includes where the children will live, which schools they will attend and what has been agreed over contact.
Marriage Certificate – The court will require the original marriage certificate or a certified copy. If you do not have the original, we can apply on your behalf to the relevant authorities. There will be a fee of £7 payable for the certified copy of your marriage certificate.
Fee exemption form – If you are on a low income or in receipt of certain benefits, you may not have to pay the court fee for issuing the petition. We will provide you with the fee exemption form and an explanatory leaflet to help you complete the form.
Court fee – The court fee of £340 is payable when court cases are started in England and Wales. This is the current fee for issuing a divorce petition and is payable if you do not quality for a concession.
Step 2: Under the family law protocol that we follow it is generally recommended that, before issuing the divorce petition in the court, the person who will be sent the papers (the Respondent) should be contacted by letter and advised of the intention to issue the petition. This is to try and agree the grounds for the petition and also to enable the person being served with the petition the opportunity to seek independent legal advice.
Step 3: All the documents will be sent to the local County Court who will then send the papers by post to the other party. Included with these papers is what is called an Acknowledgement of Service form which the Respondent will need to complete and return to the court or his solicitors within 7 days. The purpose of this form is to acknowledge that the Respondent has received the divorce petition papers and to indicate whether they intend to defend the petition or not. If the Respondent does not complete the form, arrangements will be made for them to be personally served, either by the Court Bailiff or by what is called a Process Server. If it is still not possible to serve the other party then it is possible to make an application to the court for alternative methods of service e.g. Substituted Service at their place of work.
Step 4: Affidavit – The person issuing the divorce petition has to swear on oath that everything in the divorce petition is true. This sworn document is called an Affidavit and is filed with the court.
Step 5: Decree Nisi – The sworn Affidavit and the divorce papers will then be processed by the District Judge at the court, who will have to be satisfied that there are grounds for a divorce. The court will then fix a date on which the Decree Nisi will be pronounced. It is most unlikely that you would have to attend court on this date but if you do, we will advise you. The Decree Nisi does not end the marriage, it is confirmation from the court that the divorce can proceed.
Decree Absolute The Petitioner – (the person issuing the divorce proceedings) can finally dissolve the marriage by obtaining what is called a Decree Absolute. Generally the first date that the Decree Absolute can be applied for is 6 weeks and one day after the Decree Nisi. A court fee of £45 is payable, unless you are entitled to a remission of the fee. Before the Decree Absolute is made, we will consider the following issues with you very carefully. (i) If we have not settled your financial matters we may advise you to delay obtaining the Decree Absolute as you can lose important rights once Decree Absolute has been made, in particular with regard to pensions.
(ii) We will also advise you to make a new Will upon Decree Absolute, if you have not already done so. If you are the person receiving the divorce proceedings once Decree Nisi has been pronounced the first time that you can apply to the court for the Decree Absolute will be after 6 weeks, 1 day and 3 months has passed. In addition, you will have to make a formal application to the court which means that you will have to notify the Petitioner that you are asking the court for the Decree Absolute and you will be asked to attend a formal hearing.
If you are a Respondant
If you have already received a Divorce Petition through the post and you are aware that your spouse has filed a petition, you will be the Respondent in the proceedings and you will be required to complete what is called an “Acknowledgement of Service”. This document is sent to the Respondent with the Divorce Petition and Statement of Arrangements for Children, if you have children. You will be asked to return the completed Acknowledgement of Service to the court and if you accept the Divorce Petition, your spouse will ask the court to set the matter down for Decree Nisi. The divorce is not final until the Decree Nisi is made absolute. Your spouse can apply for the Decree Absolute 6 weeks and one day after pronouncement of Decree Absolute. However, if your spouse fails to apply within 3 months of that date, approximately 4 and a half months after Decree Nisi, you can apply for the Decree Nisi to be made absolute. A short hearing will be fixed and the Judge will consider whether it is reasonable for the divorce to be finalised.
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