A step by step guide on divorce
Alastair Yapp explains what is involved in a divorce.
Although the most recent divorce statistics from the Office for National Statistics show that divorces in England and Wales have been in decline since 2010, there were still over 100,000 divorces granted in 2017. It is therefore clear that not all couples feel able to stick to their “until death do us part” vows and they conclude that a divorce is the only solution. In the event that a divorce is sought, there are specific requirements of which you should be aware.
The first thing to consider is the length of your marriage. This is because it is not possible to apply to the Court for a divorce if you have been married for less than 1 year (this is known as the “one-year rule”). Next, the basis of divorce needs to be considered and established. Currently, there is only one ground for divorce and that is the irretrievable breakdown of a marriage. This must be evidenced using one of the following five facts:
1. Adultery and intolerability
Your spouse or partner has had sexual intercourse with someone of the opposite sex (this fact is therefore not available for same-sex couples) and, as a result, you find it intolerable to live with your spouse or partner.
2. Unreasonable behaviour
Your spouse or partner has behaved in such a way that you cannot reasonably be expected to live with them.
Unreasonable behaviour can range from mild to more serious allegations including:
• No emotional support
• Lack of socialising together
• Aversion to physical intimacy
• Verbal / physical abuse
• Addiction e.g. drink/drugs
Your spouse or partner has deserted you without any warning or explanation for a continuous period of at least 2 years.
4. Two years’ separation with consent
You and your spouse or partner have been separated for at least 2 years and you both agree to a divorce. Although in most cases this means leading physically separate lives, this is not always possible (for example, due to financial reasons). If this is the case, we will need to provide evidence to the court to show that, despite living in a shared space, you have been living separately. This could mean, for example, not sharing the same bedroom, not cooking or eating together or not spending time in each other’s company.
5. Five years’ separation without consent
If you and your spouse or partner have been separated for at least 5 years, you can issue a divorce petition even if your spouse or partner does not consent to the divorce.
An additional “no fault” ground is expected to come into UK law soon. You can read more about this below.
Ultimately, the procedure for obtaining a dissolution of a civil partnership is the same, with a few subtle differences in terminology.
If you are contemplating divorce or dissolution or simply want to know what other legal options you have, please contact the Family team for an initial conversation.
The stages of getting a divorce
Stage 1: File a petition
This can be done online (if you are representing yourself) or by post if you are instructing a solicitor. The court fee for both options is the same – at the moment it is £550 and will be in addition to any legal fees incurred (if you are on benefits or a low income, you may be able to get assistance with the application cost). You will also need to include your original or certified copy of your marriage certificate with your application.
Stage 2: Notice of the petition
If the court is satisfied with the petition, it will send a copy to your spouse or partner (or their solicitor if they are represented) along with a Notice of Proceedings to explain the divorce procedure and an Acknowledgement of Service to confirm that they have received the application, and that they do not intend on defending the divorce. It is therefore important that you provide the correct address otherwise your application will be delayed, and you may incur additional costs!
Stage 3: Receive response to petition
There are several outcomes following service of petition on your spouse or partner:
If your spouse or partner does not respond by providing a signed acknowledgement of service, you can continue with the divorce proceedings if you can prove that the petition has been received. You can do this by arranging for the petition to be personally served on your spouse or partner, for example by way of a process server.
Acknowledge service and intends to contest
If your spouse or partner wants to contest the divorce, they will have to respond with reasons within 21 days of their response to the acknowledgement of service. A court hearing will then follow where both spouses or partners will be required to put across their arguments for and against the divorce proceeding. Other than a recent well reported case, a defended divorce is quite unusual.
Acknowledge service and does not intend to contest
If your spouse or partner acknowledges service and indicates that they do not wish to contest the divorce petition, then your application will proceed to the next stage.
Stage 4: Apply for decree nisi
You can apply for your decree nisi (a provisional decree of divorce) once you have received confirmation from the court that an acknowledgment of service has been received from your spouse or partner.
The court will examine the documents and evidence provided in the divorce application and, if it is satisfied that the grounds for divorce are met, your decree nisi will be granted.
Within the divorce proceedings you should agree a financial order in order to deal with the financial matrimonial claims you and your spouse or partner have against each other by virtue of your marriage. If no financial order is entered into, this could lead to your ex-spouse or ex-partner bringing a claim against you in the future. You will require legal advice in relation to a financial agreement. Please feel free to contact us for an initial discussion.
Stage 5: Apply for decree absolute
You will need to wait 6 weeks and 1 day from the date of your decree nisi before you can apply for your decree absolute. This is the document which legally dissolves your marriage. However, it is often the case that decree absolute is delayed until financial matters have been resolved.
If there are children involved in your divorce, and you are able to agree arrangements for their care following your divorce, then the court tends not to get involved. However, if you cannot reach an agreement with your spouse or partner then you may need the assistance of the court. Please feel free to contact us in this eventuality.