Getting a Divorce - Prolegal

Getting a Divorce

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The actual mechanics of obtaining a divorce are relatively straightforward. 

Who can start divorce proceedings? 

To get a divorce in England and Wales, you need to show that you have been married for more than a year and one of the couple is either domiciled here or has been habitually resident here for the preceding year.

What is the ground for divorce?

There is only one ground for divorce - that the marriage has irretrievably broken down. However this must be evidenced by one of the five facts laid down by law which prove that the irretrievable breakdown has been established.

What are the five facts?

The marriage must have broken down for one of these reasons:

  • Your spouse has committed adultery and you find it intolerable to live together
  • Your spouse has behaved in such a way that you cannot reasonably be expected to live together
  • You have been separated for two years and your spouse agrees to divorce
  • You have been separated for five years
  • Your spouse deserted you more than two years ago

The reason for the breakdown of the marriage forms the basis of the divorce application, known as the 'petition'.

If you or your spouse has committed adultery, it is not usually necessary to name the other person. Indeed ordinarily you would be advised against this.

If the petition is based on the behaviour of your spouse, you will need to give some limited examples of their behaviour and how it has affected you.

These details (known as 'particulars') should ideally be agreed with your spouse in advance, to avoid increasing any conflict between you both. 

Is there a standard form of petition?

Yes. Every petition must contain the information required by statute. The petition will include a section called the “prayer” which sets out what you are asking the court to do, namely for a divorce to be granted, for any costs order to be made and to make financial provision for you.

I have children. How does the court learn about their details?

A separate form is prepared and filed at court called a “Statement of Arrangements”. This outlines who are the relevant children and what arrangements are in place in relation to them. It is best to try to agree these arrangements but if there is no agreement this in itself will not prevent the divorce from proceeding.

Are financial issues dealt with before the divorce is finalised?

It is not essential that financial matters are concluded before the divorce can be made final but this is recommended, particularly in circumstances where a party could lose spousal benefits on the making of a decree absolute – for example under a pension arrangement.

What does the divorce process involve? 

  • Send the petition and supporting documents to the Court to be issued.
  •  Copies of the Divorce Petition and Statements of Arrangements for children, if any, are then sent to the other party, i.e. the Respondent.  The copy documents are accompanied by an Acknowledgement of Service Form.
  • Respondent returns the Acknowledgement of service form to the court.  On this form the Respondent confirms that the papers have been received, states whether or not the Divorce is to be defended and states whether or not any claim for costs or proposals regarding the children are in dispute. 
  •  Acknowledgement of Service is then sent to the Petitioner's Solicitors.  This is an important part as if the Acknowledgment is delayed or ignored there will be significant delays.
  • At this stage, provided the divorce is not defended a form known as the Statement in Support of Divorce is prepared on the Petitioner's behalf.  This document is a straight forward form with a series of questions and answers confirming the information given in the Divorce Petition and giving some additional relevant information.  This document provides the evidence for the court to save the Petitioner and Respondent having to attend Court in person. 
  • The Petitioner's Statement together with a Request for Directions for Trial is sent to the Court but a copy is not sent to the Respondent. 
  • If the District Judge is not satisfied with the arrangements for any of the children, particularly if there is a dispute about contact with the parent with whom they no longer live, an appointment may be fixed for both parties to attend Court.  This is an informal appointment in front of the District Judge and parties are not generally represented.
  • If the District Judge is satisfied that there are grounds for a Divorce, a date is fixed for the pronouncement of Decree Nisi and there is no need for anyone to attend Court for the pronouncement unless the question of costs is disputed. 
  • Six weeks and one day after the pronouncement of Decree Nisi the Petitioner can apply for the Decree Absolute, which is done by signing a simple form. There is a fee of £45 payable at this stage to the Court. It may however be wise to delay a Decree Absolute if the finances and pension situation has not been resolved.

Neither party will have to attend Court at all during the course of the divorce proceedings provided the divorce is undefended and the arrangements for the children are satisfactory.

The Court sends copies of the Decree Nisi and Decree Absolute to both parties through their solicitors and both copies should be kept in safe places in case of future reference.

The Decree Absolute is the final stage in the divorce after which the parties are be free to re-marry if they wished to do so.  However, you must advise your Solicitor in good time if that is your intention because re-marriage has serious implications for any financial claim you might have against your former Spouse. An Application for Financial Provision cannot be made after re-marriage.

If the divorce is defended, the position is much more complex.

The contents of this fact sheet are general principles and do not constitute legal advice. Every case is different and there is no substitute for individual legal advice.

NB: The process for dissolution of civil partnership is the same as for divorce. Where the term “divorce” is used in this fact sheet it should be taken to include dissolution of civil partnership. The only exception is adultery which is a specific legal term relating to heterosexual sex and which cannot therefore be used as grounds for dissolving a civil partnership. If your partner is unfaithful the grounds for dissolution would instead be unreasonable behaviour.

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