Divorce is a process that provides a married couple with a legal separation. The process of divorce in England & Wales is relatively straight-forward. The process is essentially a paperwork exercise.
If you and your spouse are in agreement that the marriage has come to an end then the process can be completed fairly quickly, sometimes in as little as 5-7 months. If you both agree that the divorce should take place then there is no need to attend Court at any stage. The process can take much longer where a Husband and Wife cannot agree about the practical arrangements for the children or the financial arrangements arising from the breakdown of the marriage. Where these issues become problematic the process can take anywhere up to 18 months or more to complete.
The grounds for divorce
Once you have decided that your marriage has come to an end and you wish to be divorced you need to consider the grounds for divorce. In fact there is only one ground for divorce in our legal system and that is whether the marriage has irretrievably broken down. In order to demonstrate to the Court that your marriage has irretrievably broken down you will need to prove one of five available facts;
- Your spouse has committed adultery and you no longer find it tolerable to live with them.
- Your spouse has behaved in such a way that you can no longer be reasonably expected to continue living with them. (Often referred to as "Unreasonable Behaviour").
- Your spouse has deserted you for a continuous period of at least 2 years immediately prior to the presentation of the petition.
- You have been separated for at least 2 years and your spouse consents to you presenting a petition based upon this 2 year separation. (Note that spousal consent forms part of the basis of the divorce, so if that is withdrawn then you can no longer proceed on this basis).
- You have been separated for a period of 5 years or more (you do not require your spouse’s consent to present a petition to the Court on this fact).
The person who issues the petition is called the Petitioner and the party who receives the petition is called the Respondent.
What is adultery?
Adultery means sexual relations between one party of the marriage and a third party. The adultery must occur between members of the opposite sex. If the relationship is not a sexual relationship then adultery has not taken place and the fact to be relied upon is unreasonable behaviour. There are certain time limits which you must be wary of. If you decide to live together for a period of 6 months after you have been made aware of the adultery then the Court will consider that you have condoned it and that fact will not be available to you.
What is "unreasonable behaviour"?
This is any behaviour which you personally find to be unreasonable and which you find intolerable to live with. Unreasonable behaviour covers of course the obvious examples such as aggressive and violent behaviour but it also covers emotional, psychological and financial abuse. The type of examples that are acceptable to the Court need not be extreme and the threshold is in fact quite low, although by reason of the recent decision of Owens -v- Owens, the threshold has arguably been heightened from what is was. Parties to any marriage can nearly always come up with examples of unreasonable behaviour. If the other party to the marriage is agreeable to you presenting a petition based upon their alleged unreasonable behaviour then the allegations can be kept to a minimum and need only include a few paragraphs.
What is desertion?
This is the least used fact in divorce proceedings. Desertion means that one party to the marriage has left for a continuous period of 2 years. Crucially the spouse who has left must have done so with the intention of ending the marriage. In can be particularly tricky to prove that intention and accordingly this fact is not often relied upon.
What is 2 years separation with consent?
This very simply means that a Husband and Wife have lived apart for a period of at least 2 years and they both agree that on the basis of that separation they should divorce. The Respondent gives his consent to the Petitioner to proceed with the Petition. Where parties are agreed that they should divorce in these circumstances it makes little difference who issues the petition. There are no allegations to be made and this is viewed as one of the more amicable facts because unlike adultery and unreasonable behaviour no fault is being alleged by one party against the other.
It should be noted that separation means living separately and apart. Sometimes this is not possible especially where either party to the marriage cannot afford to seek alternative accommodation after a decision to separate. It is possible to live separately and apart even in the same household as long as it can be demonstrated that there are no aspects of your lives which continue to be shared. This means that you sleep in separate beds, you are each responsible for your own washing, cooking, cleaning, laundry, shopping etc.
What is a 5 year Separation?
This is where a Husband and Wife have lived separately and apart for a period of at least 5 years. The Petitioner is this instance does not require the consent of the Respondent to proceed with the divorce.
When can I file a divorce petition?
A divorce petition cannot be filed within the first year of marriage.
Divorce Process utilised in undefended divorces
Below are the steps required for obtaining a divorce;
Please note that as from 27th April 2015 all petitions from the South West of England have to be issued via The South West Regional Divorce Centre in Southampton.
- Once it has been decided by the Petitioner which fact will be relied upon a divorce petition must be completed. This is a reasonably straightforward form which includes personal details about the Petitioner and Respondent such as full names, addresses, dates of birth. The petition also includes information about the marriage itself to include the date and location. The petition must also give information about whether there are any other court proceedings which have taken place or are taking place in relation to the marriage. The petition further provides information to the Court that it has jurisdiction i.e. the laws of England and Wales can be used to dissolve the marriage. The information which must be included within the petition is set down by the law so that each petition must include the same information. You will need your original marriage certificate because wording from the certificate must be included within the petition. The Certificate is also sent to the Court when the petition is issued. It must be the original document and not a photocopy.
- If divorce proceedings were issued before 22nd April 2014 and there are children of the marriage, a statement of arrangements had to be completed. This includes information about the children themselves but also the practical arrangements that you intend to make or have made. As from 22nd April 2014 there is no longer a need to file a statement of arrangements. If the parents cannot agree what should happen re the children then an application should be made to the court for a child arrangements order.
- Once the petition has been prepared it is good practice to either send a draft to the Respondent or at least invite him or her to view it before they are issued with the Court. At this stage it is also sensible to try and agree costs. The Petitioner’s legal costs and expenses (Court Fees) are going to be considerably more that the Respondent’s and it is usual for there to be an agreement that the overall costs plus Court fees are shared. A statement to this effect can be included within the divorce petition. This will be read by the District Judge in due course who can then make the appropriate cost order.
- The petition is issued with the Court. The Court will require the original marriage certificate. The Court will also require a cheque for the Court fee for processing the divorce papers. The Court fees are payable over and above any fees charged by a Solicitor for assisting you with the divorce process.
- The Court will issue the divorce papers. This means that a set of papers which have been sealed by the Court will be sent to the Respondent. The Court will have his or her address as this will be included in the petition. At the same time the Petitioner or their Solicitor will receive a notice of issue which informs the Petitioner that the papers have been sent to the Respondent and the date upon which the papers were sent.
- The set of papers sent to the Respondent will include an acknowledgement of service form. The Respondent needs to complete this form and return it to the Court within 14 days. The form is in question and answer format. It acts as evidence for the Court that the Respondent has been served with the papers and is the Respondent’s opportunity to indicate whether he intends to defend the divorce proceedings. Defended divorce proceedings are rare because they are very expensive to pursue and the chance of success is minimal. There is also the added danger that in defending the petition and failing in that defence the Court is likely to Order the Respondent to pay the Petitioner’s costs as well as their own.
- If the Respondent fails to return the Acknowledgement of Service the Petitioner may have to apply for the Court Bailiff to personally serve the Respondent with a copy of the papers. The Bailiff will then file a statement of service with the Court confirming that the papers have been served on the Respondent or alternatively that they have failed to do so and that a set of papers have been left at the Respondent’s address. The Court does not need the Respondent to sign the divorce papers it just needs to be satisfied that the Respondent has received the papers.
- Once the Respondent has completed and returned the acknowledgement of service (or personal service or deemed service has taken place) the Petitioner can move on to the first official stage of the divorce proceedings; Decree Nisi. In order to apply for decree nisi the Petitioner must complete a statement in support and an application for decree nisi. The statement in support confirms that everything in the petition remains true. The Petitioner is also asked to confirm whether there have been any periods of living together (of 6 months or more) since the date of the last incident (adultery or behaviour) relied on in the petition or since the date of separation. If there has then the Petitioner will not be entitled to a divorce. The forms are sent to the Court.
- This is the first time that the District Judge will sit down with the papers to consider whether the marriage has irretrievably broken down. The Judge will consider the details contained within the petition to check whether the test has been reached but to also check that the divorce procedure has been followed correctly and in accordance with the law. If the Judge is satisfied that the marriage has irretrievably broken down then he will issue a certificate of entitlement to a decree.
- The Certificate of Entitlement to a decree will include the date and time of when the decree nisi will be officially pronounced in Court. The pronouncement is an administrative hearing and nobody needs to attend. The pronouncement is likely to be made with dozens of others. The pronouncement hearing is an opportunity for either party to attend Court to address the District Judge on the issue of costs if that has not been agreed beforehand. The official decree nisi document and any cost order will be sent to the Petitioner and Respondent. At this stage the marriage has not been dissolved and you are still married until decree absolute has been pronounced.
- The earliest date upon which decree absolute can be pronounced is 6 weeks and 1 day from the date of decree nisi. You do not have to apply on that earliest date and indeed where there are financial matters to sort out between the parties it is usual for decree absolute to be delayed. It is only after decree nisi has been pronounced that the Judge can approve any financial orders.
- Decree Absolute is easily obtained from the Court by completing a simple form and paying a Court fee. It is only the Petitioner who can take advantage of the earliest application date. If the Petitioner fails to apply then the Respondent may apply after a further 3 months has passed. If a year has passed since the decree nisi has been pronounced then the Court will require information confirming the reason for the delay, confirmation that the parties have not lived together for a period of more than 6 months and that no further children have been born to the Petitioner and Respondent.
- The pronouncement of decree absolute has the effect of dissolving the marriage and each party reverts to the status of a single person in all respects.