Divorce

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Divorce

To obtain a divorce you must have been married for at least one year and comply with strict rules of residence within England and Wales.

You must show that the marriage has irretrievably broken down on the basis of one of the following facts:

adultery
unreasonable behaviour
desertion
two years separation with the other party’s consent
five years separation without consent.

Either party can file for divorce. The person filing the divorce petition is called the petitioner and the other party is called the respondent.

The petitioner files at court the petition, Statement of Arrangements for Children form (if appropriate), certification regarding reconciliation and fee (or a fees exemption form).

The court issues the papers and serves them on the respondent who has seven days in which to file an Acknowledgement of Service. On receipt of the Acknowledgement of Service, provided the respondent does not intend to defend the petition, the petitioner swears an affidavit and applies for Directions for Trial. If the judge is satisfied that the petitioner has sufficiently proved the grounds for divorce relied on, he sets the date for pronouncement of the Decree Nisi. He will also indicate what costs orders (if any) he intends to make against the respondent.

Six weeks and one day after a Decree Nisi the petitioner can apply for a Decree Absolute. If the Petitioner does not apply then the respondent can apply for a Decree Absolute three months after the earliest date on which the petitioner could apply.

Frequently Asked Questions About Divorce

What are the practical effects of divorce?

Divorce ends the marriage and frees the parties to remarry. It effects entitlement to benefits and pension, and also has significant implication for wills, housing and finances.

Can I defend a divorce?

It is possible to defend a divorce. If a defence (known as an answer) is filed there has to be a hearing where the judge will decide if there is sufficient evidence of grounds for divorce. If there is not, then the divorce will not proceed. This is however a costly exercise.

How long will it take to get divorced?

Each case varies but you can usually expect the divorce to be finalised within four to six months, provided it is not defended.

Do I have to go to court?

No, not usually. Provided the divorce is not defended it is not usual for either party to have to attend court.

Can I get an order for my spouse to pay my costs?

The judge has the discretion to order the other party to pay the costs and may sometimes exercise that discretion, usually on adultery or unreasonable behaviour petitions if the circumstances warrant a costs order. It may also be possible for an agreement to be reached regarding a contribution towards the petitioner’s costs.

Do financial matters have to be sorted out before the divorce is finalised?

No. If agreement is reached on all financial matters, this cannot be recorded in a court order until there is a Decree Nisi and is not enforceable until there is a Decree Absolute.

A Decree Absolute can be pronounced before finances are agreed but a Decree Absolute has important financial consequences, e.g. the loss of widow(er)’s pension rights and it may therefore not be advisable to apply for a Decree Absolute until financial matters are concluded.

Do I have to name any third party within adultery proceedings?

No. In fact the court discourages this. A third party is called the co-respondent.

What orders will the court make with for our children when we divorce?

Usually none. The judge has to certify that he is satisfied with the arrangements for the children. Provided he is satisfied then he will not make any order but if there are problems in arrangements for the children, then it is open to either party to make an application to the court for an order.

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