- Gender and Relationships
English Divorce Procedure
The principles for getting divorced in other countries may be similar to that in England and Wales but you need to check the detail
In my personal experience as a family lawyer, I have found that the busiest time of the year for new divorce cases was early in the new year, followed by the period just after the mid-year summer holidays,
This doesn't surprise me, because the final decision to break up often comes after a few days cooped up together over a stressful holiday period when high expectations of happiness and enjoyment together fall well short of reality. This can be a stormy period, with lots of rows or sulks, and disagreements, which culminate in one or both spouses deciding this has gone far enough, and they are no longer a unified family,
This is also a time for contemplation and assessment of the marital situation in general, not to mention time for finding alternative accommodation, or starting or continuing a new relationship, culminating in a walk-out or throw-out, depending on who gets there first.
Add to this the results of seasonal inebriation with concomitant violent mood changes and abuse, and staying out all night, and there you have it, a recipe for disaster.
The mechanics of obtaining a divorce nowadays are usually quite straightforward - particularly if the couple agree that the marriage is over. Even if you don't live in the UK, this information will give you a better idea of what to expect when getting divorced.
The difficulties tend to lie not so much in the legal process of the divorce itself, but rather in resolving the related practical issues stemming from divorce such as how to separate, where to live, arrangements for the children and any money matters.
Your attention will probably be concentrated on those related issues and the process of actually obtaining the divorce may seem blurred.
This is where I can help you, as I have over tweny-five years' experience in this area of the law.
The purpose of this article is to outline a broad framework of the divorce process, to highlight the main points and to set out the sort of timetable to expect.
Until my retirement I was a London solicitor specializing in Divorce and Family Law. Please note that I am no longer a solicitor, and this article is merely for your guidance, and is not intended to replace appropriate legal advice.
Did you Know This?
According to Government statistics, by far the most divorces start after a holiday, and more divorce proceedings are commenced at the beginning of January than at any other time of the year.
1. Who can start divorce proceedings?
Remember this is in England and Wales, and the law would be different elsewhere
Anyone may start divorce proceedings after 1 year if either one of the couple is domiciled here or has been resident here for 1 year (provided the marriage has broken down)
Anyone who has been married for over a year may apply for a divorce, if they have grounds to do so, provided that either of the couple is either domiciled here or has been resident in England or Wales during the preceding year.
It does not matter where the couple were married.
2. On what grounds can a Divorce Petition be started?
Grounds for Divorce - Irretrievable breakdown based on one or more of five facts:
Irretrievable breakdown of marriage must be proved by at least one of the five facts
The only ground for divorce is that the marriage has irretrievably broken down, but a divorce will only be granted if one of the five facts laid down by law, providing irretrievable breakdown, is established
3. What are the "facts"?
The Facts which prove irretrievable breakdown of the marriage
You need to show just one of the following:
b) Unreasonable behaviour
c) Desertion for 2 years without your consent
d) Separation for 2 years and both consent to divorce
e) Separation for 5 years
The only ground for divorce is that the marriage has irretrievably broken down, but a divorce will only be granted if one of the following five facts laid down by law is shown, provided that irretrievable breakdown, is established:
a) Your spouse has committed adultery and you find it intolerable to continue living together.
b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
c) Your spouse has deserted you for a continuous period of two years or more.
d) You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
e) You and your spouse have been living separately for five years or more, whether or not your spouse consents to the divorce.
4. If the marriage has "irretrievably broken down" and one of the five facts applies, what happens next?
HAVE YOU DECIDED THAT THERE'S NO OTHER ALTERNATIVE BUT TO GET DIVORCED?
IS THE BREAKDOWN IRRETRIEVABLE?
ARE YOU ABLE TO SHOW THE COURT ONE OF THE FIVE FACTS WHICH PROVE THE GROUND FOR DIVORCE?
WHAT HAPPENS NEXT?
The only ground for divorce is that the marriage has irretrievably broken down, but a divorce will only be granted if one of the five facts laid down by law, providing irretrievable breakdown, is established.
This will depend upon your particular circumstances. If is often sensible to try to obtain your spouse's consent to the Divorce Petition and to try to reach agreement over the wording of the Divorce Petition. For example, if your spouse accepts that the Petition should be based on the Fact of Unreasonable Behaviour, it may only be necessary to give a brief outline of the particular behaviour rather than a blow-by-blow account going back several years. Generally you would not be prejudiced by taking this approach.
Have you Considered getting Marriage Guidance Counselling or Mediation?
Before you make the final decision Relationship Counselling could help
If you dearly love someone, but can't stand certain aspects of their behaviour, or if there are other reasons why it is preferable to stay together, try marriage guidance counselling first.
Marriage Guidance Counsellors are trained to be impartial - that means they are trained not to favour one side over the other, as they are neutral. Strictly speaking, they are relationship counsellors, and unmarried people can also get help. They will not try to press you into remaining in a harmful relationship, so don't feel that you can only seek help if you intend to stay with your partner for ever.
The National body in England has changed its name from "The Marriage Guidance Council" to Relate, to signify that they help people in all forms of relationships.
They will give you a safe space to air the problems in your relationship and look for solutions. It works best if you both agree to go. But if the other person refuses, it is still worth going to counselling to try to assess what your alternatives are, and how best to go forward, either alone or together.
Relate Counselling and also mediation are not there just to help you to heal your marriage - if you decide your marriage cannot be salvaged, counselling and mediation can help you to resolve issues and discuss things which, unaided, you might both find too painful or difficult.to deal with in a reasonable way. They provide an arena where each person is given space to say what they think, whilst still working together to deal with decisions about finance and children. Because the couple are in the presence of a third party who is neutral and merely there to facilitate discussion, the separating parties may be able to communicate more reasonably than they would do on their own, as they would be encouraged to consider the other person's point of view as well as their own.
Remember - If you always do what you've always done, you'll always get what you always got - so be prepared to change.
If you are Reluctant to Divorce Try the Links Below - Breaking up a Relationship is not a Quick or Easy Decision
Before you get caught up in divorce proceedings, know your options.
Don't rush into anything you might regret later.
If there is still a spark of affection between you which could be rekindled, you might be happier staying with the devil you know, rather than taking that great leap into the unknown. And research indicates that divorce is seldom a good option for children, although it might be preferable to continuing permanently in an abusive atmosphere for the whole of their childhood.
- Get a divorce: Apply for a decree absolute - GOV.UK
How to get a divorce - the grounds you can use, filing a petition, getting a decree nisi and a decree absolute, and applying if your spouse lacks mental capacity
- Marriage - Giving Up or Holding On (this is a Pass Forward Message)
"When I got home that night as my wife served dinner, I held her hand and said, I've got something to tell you. She sat down and ate quietly. Again I observed the hurt in her eyes. Suddenly I didn't know how to open my mouth. But I had to let her kno
- Children and Divorce / Warring Parents - How Forgiving your Partner can Help your Children
Putting an end to bitterness: Some parents may not realise that forgiveness does not entail that they allow the forgiven person to continue to mistreat or disrespect them. They may not realise that forgiveness allows the forgiver to take back their
Divorce Procedure is Rather Technical and Boring - So here's a musical interlude from YouTube to keep you awake
Then you can return to the technical Divorce Proceedings which continue below.
Dolly Parton Sings Jolene
5. What does the Petition actually look like?
The Divorce Petition is a document
Every Petition follows the same standardized form. It contains basic information about names, addresses, ages of children and a Statement that the marriage has irretrievably broken down. It will also state the "fact" on which it is intended to rely.
The Petition will include a section (known as a "prayer"), which will include a request for the divorce to be granted. It may also include a request for an Order relating to children: a claim regarding costs of the divorce: and an Order for financial provision.
6. What about the children?
A form is sent to the Court with the Divorce Petition which will outline the arrangements relating to children.
The law encourages couples to try and agree those arrangements.
The form (known as a "Statement of Arrangements") is usually completed by the person filing the Petition ("filing" means sending or lodging the document at court). Preferably it should be sent to the other spouse before it is filed. If agreement is not reached, the divorce can still proceed but there could be a problem obtaining the Decree Absolute (the final stage of the divorce).
I have written a companion webpage which deals with issues relating to
children in divorce proceedings and you will find a lot more detail there.
7. How much does the divorce cost?
This depends on the finances of each party to the divorce.
Those who are unemployed or on a low income may be eligible for advice under the Legal Aid scheme. This means the State will pay the majority, if not all, of the Solicitor's costs.
Those who are not eligible for Legal Aid should ask their own Solicitor for an estimate of the likely costs. Solicitors are obliged to provide an estimate of their costs at the beginning of the case.
In addition, the Court will require a court fee of £550 payable up-front, when the papers are initially filed at court (given to the court) and £245 if, as the Respondent, you disagree with the divorce.
8. Are financial issues dealt with before the divorce is finalised?
It is not necessary for financial discussions to be completed by the time the divorce is final.
Frequently they will still be in the early stages if finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements.
9. Are the proceedings public?
Court proceedings in family law are usually private. This means the public and press are not allowed access to the Court papers. However, the press are able to publish the fact that a divorce has been pronounced. The information that they may disclose is very limited. They may disclose the "facts" of the divorce but they are not permitted to publish details of the adultery or unreasonable behaviour.
10. Time Table
10.1 After one year of marriage
Either spouse may start the divorce. He or she is referred to as the "Petitioner". The Petitioner and Statement of Arrangements about the children are completed and then sent t the Court together with the Marriage Certificate. The Court fee is payable unless the Petitioner is being advised under the Legal Aid Scheme.
10.2 Within a few days of sending the Petition to Court
The Court sends a copy of the Petition and Statement of Arrangements to the other spouse referred to as the "Respondent". A copy of the Petitioner is also sent to anyone named in the adultery Petition. That person may be referred to as a "Co-Respondent". If the Respondent (or Co-Respondent) has instructed Solicitors, the Petition may be sent to them.
10.3 From the date that the documents are received the Respondent has strict time
limits to observe
a) Within 8 days He or she should send to the Court a form called an "Acknowledgment of Service" which accompanied the Petition. The form asks the Respondent whether it is intended to defend the Petition, whether any claim for costs is disputed and whether Orders affecting the children are sought.
b) Within 29 days of receipt (longer if the documents have to be sent to an address abroad)
Whether or not an Acknowledgment has been filed (delivered to the Court), the Respondent must, if he or she intends to defend the Petition, file a Defence (called an "Answer"). The Petition then becomes defended and the procedure outlined below does not apply. Defended divorce proceedings resulting in a fully contested hearing are very rare. A defended divorce would seriously delay finalising the divorce.
10.4 Within a few days of receiving the Acknowledgment of Service from the
Respondent (and Co-Respondent)
The Petitioner then completes and files at Court a Request for Directions for Trial.
The Judge will then read all the papers including the Statement of Arrangements for Children, and decide whether to grant the divorce, and if so, will issue a Certificate of Entitlement to a Decree. This will tell you the time and date when your divorce will be granted (Pronouncement of the Decree Nisi). On the appropriate day the Decree Nisi will be pronounced; you do not have to attend court for this. This is the first stage of the divorce an is NOT the end: you have to wait for the 'Decree Absolute' before you are free to remarry.
Six weeks after the Decree Nisi, you will be entitled to apply to court for the Decree Absolute, which will normally be granted virtually by return of post.
A standard straightforward divorce takes about four to five months. This time-scale would be provided that the paperwork is correct, and that people deal with the various steps promptly, and that there are no delays at court and nothing is disputed. During this period, if there are children, agreement would normally be reached about their future.
If there is a very substantial reason for requiring a divorce more quickly, e.g. if someone needs to re-marry urgently, possibly for immigration reasons, an application can be made to the court to expedite the divorce.
Financial arrangements often take much longer than this, particularly if they are complicated. Full and frank financial disclosure is required, and if pensions and other assets such as company shares need to be valued, it is not unusual for Ancillary Relief, as it is called, to take longer than a year to resolve.
The above is an explanation of very straightforward undefended proceedings where everyone signs and returns their forms when they are supposed to do so. If there are any complications, such as disagreement about children, or legal costs, not being able to trace the Respondent, or the Respondent wanting to defend the divorce or simply not signing and completing documents, you should obtain further help. There is a good link below to a website called Divorce Procedure, which gives a lot more detail than this website, with loads of alternatives and details about forms and procedure where things are more complicated.
Important Case About Pre Nuptial Agreement - English law until recently didn't recognize Pre Nuptial agreements
This case below is somewhat of a landmark case, because English law until recently did not recognize Pre Nuptial agreements, saying that they were in effect ousting the jurisdiction of the court.
However, since most of Europe does support the principle that very wealthy people should be able to protect their assets with a pre- or post-nuptial agreement when they marry, in case of a later divorce, England has been at odds with Europe about this. Gradually the view of the courts has been that, provided no children are involved, and there are no other contra-indications, there is good reason for saying that marrying couples should indeed be bound by their agreements with regard to their assets.
More people are now making prenuptial agreements, but their status is still debatable. Since the welfare of children is of paramount importance in divorce cases, the courts normally take the view that they should not allow the parties to a marriage to attempt to divert the law in this respect. However, where the welfare of children is not at issue, the courts are relaxing their firm stance.
Useful Links to Guide You Through Divorce and Child Issues - Advice about the law and procedure and how to get hold of the correct Court Forms
- Child Contact and Residence in Divorce Proceedings
Child Contact and Residence or Custody - Where will The Children Live? Will I be Able to See the Children? What happens to the children when their parents get divorced? This can be a fraught question and people sometimes get worried that their childr
- English Supreme Court Rules in Favour of Pre Nuptial Agreement - BBC News 20th October
"Supreme Court rules in favour of pre-nuptial agreement - Katrin Radmacher and Nicolas Granatino spent most of their married life in west London. The UK Supreme Court has ruled that a pre-nuptial agreement is binding in the case of a German paper com
Music to Remind you That You're Not Alone - Some Oldies from YouTube to Cheer You Up or Make You Weep Buckets
Yep, broken relationships have happened to most of us.
Here are some songs about love, lost love, broken relationships, bad behaviour and even divorce itself.
Here's a Really Sad Picture - I Drew This Myself
Below are Some Jolly Things to Lighten a Dire Situation
Some of my Zazzle designs: "Legal" Items
Do Add a Comment below -
You can also ask me questions or suggest another web page that I could write on a family topic. Or comment on your experience of divorce and family law
© 2010 Diana Grant