When a married couple or civil partners separate it can be a stressful and emotional time. There are also usually a number of practical and financial issues which need to be addressed.
The divorce / dissolution proceedings themselves are relatively straightforward, particularly if the couple agrees that the relationship is over. The difficulties tend to lie with the other aspects of a relationship breakdown such as arrangements for any children and the separation of joint finances.
Divorce proceedings merely enable a marriage to be dissolved. Dissolution proceedings enable a civil partnership to be dissolved. However in most cases (although pension rights may automatically be lost) finances will be unaffected. So, for example, joint bank accounts or mortgages will remain in joint names. That is why it is very important for financial matters to be dealt with alongside divorce proceedings so that a fair division of all family property can be carried out.
For the purposes of this information, divorce proceedings will be referred to. The process is almost identical for dissolution proceedings, save for the facts that need to prove the breakdown of a relationship are slightly different. This is explained at the end.
Who can start a divorce?
Anyone who has been married for a year or more, provided at least one of you has been living in England and Wales for the preceding year. It does not matter where you married as long as the marriage was legally recognised in the county / location that you married.
On what grounds can we divorce?
The only ground for divorce is that the marriage has irretrievably broken down. However a divorce will only be granted if you can also show one of five ‘facts’ laid down by the law as proof that the relationship has irretrievably broken down and that there is no chance of a reconciliation. There is proposed legislation to take away the need for one party to prove the other is at fault in divorce proceedings, however, that is still to be ratified in law. Therefore until that point, there is a need for you to prove why the relationship has broken down irretrievably.
What are the ‘facts’ that prove the breakdown?
- Your spouse has committed adultery and you find it intolerable to continue living together
- Your spouse has behaved in such a way that it is unreasonable to expect you to continue living together.
- Your spouse has deserted you for a continuous period of two years or more.
- You have been living separately for two years or more and your spouse agrees to a
- You have been living separately for five years or more, whether or not your spouse agrees to a divorce.
How do I start a divorce?
This depends upon your circumstances. It is best practice to try and obtain agreement to the contents of the petition before this is sent to Court. This can simplify matters later and avoid causing unnecessary problems. It is therefore usual for a draft copy of the petition to be sent to your spouse before the petition is filed at Court so any objections can be dealt with prior to the start of proceedings. This generally ensures that the proceedings run as smoothly as possible.
What does a divorce petition look like?
Every petition follows the same form. It contains basic information about you such as names, addresses, name and age of children and a statement that the marriage has irretrievably broken down. It will also state the ‘fact’ to prove the breakdown and include a request for a divorce. It may also include a claim regarding the divorce costs and for financial provision.
How much does a divorce cost?
We charge fixed fees for divorce proceedings and information can be found on our Fixed Fee Information Sheet Divorce / Dissolution Proceedings.
Are financial matters be dealt with before the divorce is finalised?
You do not need to settle financial matters before the divorce is final. Often financial discussions are only in the early stages if finances are complicated. Nevertheless it should be possible to solve immediate problems and make temporary maintenance arrangements by this stage i.e. interim maintenance agreement.
Are the proceedings public?
All family proceedings are usually held in private. This means that the public and press are not allowed to look at the Court papers. However the press can publish the fact that a divorce has been pronounced, but the information that may be disclosed is limited. They may give the ‘fact’ but not details of the adultery or unreasonable behaviour.
Timetable for divorce
- After one year of marriage – Either spouse may start the divorce. They are called the ‘Petitioner’. The petition is sent to the Court with the original marriage certificate. A fee, currently £550 is paid unless you are exempt from paying the fees, for which a completed exemption form along with supporting documentation must also be sent to Court.
- Within a few days of sending the petition to Court – The Court sends a copy of the documents to the other spouse who is called the ‘Respondent’. A copy of the petition is also sent to anyone named in an adultery petition known as a “co-respondent”. It is best practice not to name a co-respondent other than in exceptional circumstances. It is not necessary for an adultery petition to proceed and in fact can delay matters, and make the proceedings more emotionally traumatic than they need to be.
- From the date the Respondent receives the petition:
- He or she should send to the Court a form called an acknowledgment of service which they will have received from Court alongside the divorce documents. This form asks whether it is intended to defend the petition, whether any claim for costs is disputed and whether orders affecting the children are sought. If they agree, the divorce is known as an undefended divorce.
- If they don’t agree, the divorce becomes a defended divorce. The Respondent must, if he or she intends to defend the petition, file a Defence (called an ‘Answer’). If petition becomes defended, the procedure outlined below does not apply. Defended proceedings resulting in a fully contested hearing are very rare. However, a delay in finalising the divorce is inevitable.
- Within a few days of receiving the acknowledgment of service completed by the Respondent – The Court sends a copy of the completed form to the Petitioner or their solicitors.
- If acknowledgments(s) of service are not returned to the Court? – Proof that the Respondent and (any Co-respondent) has received the petition will have to be obtained before proceeding. This may involve an application for a Court bailiff to deliver a copy personally, known as “bailiff service”, or, rarely, asking the Court to order that such proof does not need to be given called “dispensing with service”. If these steps are necessary, this will lead to a delay in the proceedings and also further Court costs.
- If the Respondent is not defending the divorce, the Petitioner can apply for the Decree Nisi which is the first stage in a divorce decree – The Petitioner prepares a statement saying that the contents of the petition are true. It will also say whether any details have changed since the filing of the petition. The Petitioner will then send this to the Court with a request for the Court to examine the papers and arrange a date for the conditional decree of divorce, the “decree nisi” to be pronounced.
- On receipt by the Court of the application for Decree Nisi – The papers will be examined by a District Judge and, if they seem in order, the District Judge will provide a certificate saying that the Petitioner is entitled to a divorce and fix a date for the Decree Nisi to be pronounced. Both the Petitioner and Respondent are advised of the date fixed for Decree Nisi. This is usually a few weeks after the application is lodged depending on the Court diary. No one usually has to attend.
- Six weeks and one day after the date of Decree Nisi – the Petitioner may apply for the final decree (‘Decree Absolute’) by sending the appropriate form to the Court. This is not automatic. The Decree Absolute will then be processed by the Court he same day that the application is received (although it can take a few days for the Court to send this out). In many cases, it will be sensible to delay application for Decree Absolute until financial matters have been dealt with.
- Three months after the date that the Petitioner could have applied for Decree Absolute – the Respondent may apply for the Decree Absolute if the Petitioner has not already done so by making an on notice application to Court.
- What if I change my mind? – If you are the Petitioner and wish to stop the proceedings, then this can generally be done at any time up to Decree Absolute. After Decree Absolute it is too late to change your mind.
Dissolution of a Civil Partnership
The process for dissolution of a civil partnership is the same as for a divorce. The only exception is adultery, which is a specific legal term relating to heterosexual sex and which therefore cannot be used as grounds for dissolving a civil partnership. If your partner is unfaithful the grounds for dissolution would instead be unreasonable behaviour. The Decree Nisi in Civil Partnership Dissolution is called the “conditional order” and the Decree Absolute as “Final”.
NOTE: The above is intended as a general overview for your information. It is NOT intended to replace proper legal advice. Each case is different and advice cannot be given without a proper analysis of your own circumstances.
THE FAMILY LAW TEAM
- Rebecca Sykes – firstname.lastname@example.org
Rebecca is assisted by Emma Anstey and Karen Lobley-Holland
- Leanne Gwinneth – email@example.com
Leanne is assisted by Kerry Welsh
- Hayley Jervis – Hayley.Jervis@dicksonssolicitors.co.uk
Hayley is assisted by Amy Williams and Karen Lobley-Holland
Please telephone 01782 26 24 24 for an appointment or alternatively email our team.