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English Divorce Procedure

Updated on August 23, 2017
Gloriousconfusion profile image

I practised as a solicitor in London, mainly in all areas of family law and my studies gave me an interest in psychology, and human rights

The Law Courts, Strand, London
The Law Courts, Strand, London | Source

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)
(Divorce petition)

The only ground for divorce is that the marriage has irretrievably broken down, but a divorce will only be granted if at least one of the five facts laid down by law, providing irretrievable breakdown, is established.

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
(Divorce petition)


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

Just in case you need to know about Divorce in America - - Here's a helpful book about American Family Law

Family Law in America
Family Law in America

American law is not within my detailed sphere of knowledge, although I know that it is fairly similar to English Family Law in many respects.

So all I can say about this book is that it looks good - Professor Katz has taught family law for over forty years

 

3. What are the "facts"?

The Facts which prove irretrievable breakdown of the marriage

You need to show just one of the following:

a) Adultery

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?

  • YES.

  • IS THE BREAKDOWN IRRETRIEVABLE?

  • YES.

  • ARE YOU ABLE TO SHOW THE COURT ONE OF THE FIVE FACTS WHICH PROVE THE GROUND FOR DIVORCE?

  • YES.

  • 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.

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?

Source

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?

Source


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.

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

Leaving Home
Leaving Home | Source

Below are Some Jolly Things to Lighten a Dire Situation

Some of my Zazzle designs: "Legal" Items

Mousepad - Let's Make it Legal -

Source

A T-Shirt for the Newly Divorced

On Zazzle you can choose the style and colour of T-Shirt you want, and then either choose a design from the many hundreds on their website, or add your own design - so anything you buy is completely personalized - it's brilliant, and such fun for per
On Zazzle you can choose the style and colour of T-Shirt you want, and then either choose a design from the many hundreds on their website, or add your own design - so anything you buy is completely personalized - it's brilliant, and such fun for per | Source

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

Comments: Are You or Anyone Close Thinking of Breaking Up? - What's your experience about Divorce?

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    • Gloriousconfusion profile image
      Author

      Diana Grant 2 years ago from United Kingdom

      Don't forget to tie it all up by getting a final order relating to financial matters - if your former spouse suffers serious illness and/or hardship, or you come into a fortune, your ex-spouse may still come back and make a financial claim against you at a later date, depending on the circumstances. Unlikely, but not unheard of

    • Wendy L Henderson profile image

      Wendy Henderson 2 years ago from PA

      These are all great tips. I actually decided on a divorce on Thanksgiving 2 years ago and although it was scary, I handled it all without a lawyer! Actually I just got my divorce papers in the mail. Great post!

    • profile image

      londoncounsellingdirectory 3 years ago

      Wow, very informational and a great guide for those who are thinking of divorce or perhaps thinking of getting help to try and avoid divorce by saving their marriage through marriage counselling I do a lot of research and writing on marital issues and more and I find this very insightful.

    • Gloriousconfusion profile image
      Author

      Diana Grant 3 years ago from United Kingdom

      @Egils Petersons: That may be your opinion, and you are entitled to your beliefs, but that is not the law. I have merely explained the legal position to those who might need to know.

      Those who do not believe in divorce can stay married

    • Egils Petersons profile image

      Egils Petersons 3 years ago from Latvia

      Mark 10:11-12

      11 He answered, âAnyone who divorces his wife and marries another woman commits adultery against her. 12 And if she divorces her husband and marries another man, she commits adultery.â

    • profile image

      liamsquidoo 4 years ago

      Great lens, enjoyed reading it. Keep up squidooing :)

    • Gloriousconfusion profile image
      Author

      Diana Grant 4 years ago from United Kingdom

      @dellgirl: That's what I set out to do. But remember that this is English law, and although American and English law is fairly similar, you need to make allowances for those differences.

    • leesholden profile image

      Lee 4 years ago from Derbyshire, UK

      Myself and girlfriend has just broken up, and it's not nice. I feel for those who go through a divorce because there's just so many more complexities.

    • profile image

      dellgirl 4 years ago

      Thanks for sharing this information, itâs very thorough and so well done! I learned something new.

    • profile image

      Aunt-Mollie 4 years ago

      I'm so glad I found this article. I give divorce advice (not legal) and have written a few lenses on the topic here. It's a much different procedure in the UK. I wasn't aware that fault was required in England. Most of the American states have no-fault divorce, although it wasn't always that way. Since US law originated with British law, perhaps you will write an article about the history of divorce law in England. I, for one, would like to read that. Liked!

    • profile image

      anonymous 4 years ago

      this is very interesting lens

    • profile image

      anonymous 5 years ago

      Thanks for the useful lens!

    • Gloriousconfusion profile image
      Author

      Diana Grant 5 years ago from United Kingdom

      @ChrisMag14: Glad you found it helpful. I am not certain but believe the law would be the same, as we are all part of the same legal system as far as I am aware. Southern Ireland is different of course.

    • ChrisMag14 profile image

      ChrisMag14 5 years ago

      Great lens! I am a freelance legal audio typist in Northern Ireland and was interested to see how similar divorce proceedings are here and over the water. Thanks for the great information!

    • malena10 profile image

      malena10 5 years ago

      I know some people who is divorced. But if it do not work, what else can you expect? Children are hurt the most.

    • Gloriousconfusion profile image
      Author

      Diana Grant 5 years ago from United Kingdom

      @julieannbrady: It is expensive, but the secret of saving money is to be fair and reasonable, and not fight over every issue

    • profile image

      julieannbrady 5 years ago

      You know, I have never really contemplated what English divorce must be like! I wonder if it would cost as much as American divorces?

    • Wbisbill LM profile image

      Barbara Isbill 5 years ago from New Market Tn 37820

      Married for 36 years, and HAPPY! I feel for folks with divorce (whether easy or hard). Great topic, and delivery!

    • Gloriousconfusion profile image
      Author

      Diana Grant 5 years ago from United Kingdom

      @Fcuk Hub: That's great - long may it last. As well as luck, there is probably a degree of skill and love in there somewhere!

    • Fcuk Hub profile image

      Fcuk Hub 5 years ago

      I'm lucky, my marriage is firm as a rock :) Great divorce lens.

    • profile image

      nlmnewzealand 5 years ago

      That is great to read here. I really got it very informative to read. Thank you for sharing.

      Separation Agreement

    • solicitorsdubli profile image

      solicitorsdubli 5 years ago

      Good comprehensive coverage of divorce in UK which contrasts with our situation here in Ireland..

    • profile image

      megabu717 5 years ago

      Clear info, nice lens. Thank you for sharing.

      I think many would appreciate your experience from the children residence cases which are less straightforward very lengthy.

    • profile image

      NassauDIvorceLawyer 5 years ago

      Hey nice lens and great information, over here in the colonies the divorce laws are very similar (take a look at my divorce lens - oh and don't forget to like it). I think we have to jump through a few more hoops to get to the finish line.

    • bames24 lm profile image

      bames24 lm 6 years ago

      your lens contains some very useful information :)

    • iandrzej lm profile image

      iandrzej lm 6 years ago

      I wish no one need this but surely can say its really wonderful explanation and information. Gr8 work done..!

    • nickupton lm profile image

      nickupton lm 6 years ago

      One of the best lenses I have seen. Great advice for those who are thinking about divorce.

    • Gloriousconfusion profile image
      Author

      Diana Grant 7 years ago from United Kingdom

      @MichelleLacroix: Thanks, glad you thought it would be helpful and thanks for returning the visit

    • Gloriousconfusion profile image
      Author

      Diana Grant 7 years ago from United Kingdom

      @hayleylou lm: Divorce is hard - I had a very unapproachable and uncommunicative solicitor when I was young and getting divorced, and after I qualified myself, I did my best to be as approachable and helpful as possible, because there are so many aspects which are difficult to understand.

      For instance, he told me to write out a description of the grounds for the divorce. So I did - over a week or two I wrote twenty pages, agonising over all the pain I was dredging up in order to make sure I would get the divorce. When I took it in to him, he sneered a bit, and laughingly said he only needed a couple of paragraphs about the most recent events......well, why didn't he say so then? I felt very angry about the trouble he had thoughtlessly put me through for nothing.

    • MichelleLacroix profile image

      Michelle Lacroix Toro 7 years ago from United States

      Loads of information for those who are looking for help on this subject. VERY nice lens. Thank you for suggesting my lens on your site.

    • hayleylou lm profile image

      hayleylou lm 7 years ago

      Lots of info on a sad subject, it must be so hard to go through divorce proceedings, thumbs up

    • Gloriousconfusion profile image
      Author

      Diana Grant 7 years ago from United Kingdom

      @Linda BookLady: Thanks Linda

    • Linda BookLady profile image

      Linda Jo Martin 7 years ago from Post Falls, Idaho, USA

      Your lens is well organized and should be very helpful to those needing the information. I'm going to bless it today.