There is only one ground in England & Wales for a divorce and that is “Your marriage has irretrievably broken down”. Once you have decided that the marriage has irretrievably broken down the first stage within the divorce proceedings is to decide on the reason for your divorce. You must choose one of the five facts of divorce. These are:
2. Unreasonable behaviour
4. You’ve been separated for 2 years and you both agree to the divorce
5. You’ve been separated for 5 years
Five Facts Explained
Adultery means that your husband or wife has had a sexual relationship with someone else, as a result of which you cannot continue living with them. The other party, the person who has committed adultery will need to formally make an admission in writing. It's important to note that the adultery must have been with someone of the opposite sex.
2 Years Separation
You must have been separated for two years or more and both agree to the divorce being granted. Usually separation will begin when one person moves out of the family home. If you have remained living together during your separation, perhaps because of the children or financial reasons, you will need to show to the court that you have maintained separate lives during that period.
5 Years Separation
You must have been separated for at least five years, you do not need the other person to agree to the divorce being granted.
Desertion is when the Petitioner has been deserted by their husband/wife for at least two years. This might happen in a situation where one person leaves the other against their wishes. This fact is rarely relied upon.
You can use the unreasonable behaviour fact if your husband or wife's behaviour is such that you can no longer live with them. For example this can include a lack of affection or intimacy, financial difficulties, and excessive socialising, alcoholism, inappropriate relationships with other women albeit of a non-sexual nature and domestic abuse. There are many more situations which would be classified as unreasonable behaviour therefore it is advisable that you seek legal advice.
What happens next?
When you decide on the reason for divorce, the person applying for the divorce, the “Petitioner”, will give instructions to their solicitor to complete the Divorce Petition. Once completed the Divorce Petition will be sent to the local court, along with the marriage certificate and the Court fee which is currently £550 (unless you are eligible for a fee reduction).
The court will then send the Divorce Petition to your husband/wife, called the “Respondent”. The Respondent has 8 days to return the Acknowledgement of Service form to the court.
Uncontested Divorce - Where the divorce is uncontested, meaning your husband/wife agrees, the Petitioner can then apply for a Decree Nisi. Once the Decree Nisi has been issued, the Petitioner must wait 6 weeks and 1 day, after which he/she can apply for a Decree Absolute.
How Long Does a Divorce Take?
Divorce Courts in England are currently experiencing delays, and as a result, a divorce is usually taking between 6 to 8 months from lodging the Divorce Petition at the court to obtaining your Decree Absolute.
What are the fees?
At Brennans we offer you free initial advise to help you decide the best fact to rely upon and provide you with transparent costs of the process. If you chose to instruct us we will help you through the usual steps in a divorce. The fee for a fully represented divorce is £499 inclusive of VAT however we do offer low cost options if you don’t mind doing a bit of the work yourself, see our fee booklet.
Can a Divorced be refused?
A divorce could be refused - this is called a contested divorce, in simple terms, one person does not agree
Where the divorce is contested, the Respondent should return the Acknowledgement of Service to the court indicating their intention to defend the divorce. He/she then has 21 days to provide an Answer stating what elements of the divorce they do not agree to. There is a court fee to file an Answer which is £245.
Whilst it would be highly irregular for a divorce to be refused by a Court, it is possible in certain circumstances. A Court can refuse a divorce if the Petitioner is relying on 5 years' separation, and the Respondent argues that the divorce is wrong because it would cause him or her to suffer grave hardship. Grave hardship in simple terms means that the person would suffer financial difficulties.
In the majority of cases this problem can be overcome through a financial arrangement that would prevent the Respondent suffering “grave hardship”.
Where there are disputes during a divorce, we can refer you to Mediation whereby an independent mediator will help the parties reach an agreement. If this is not suitable for whatever reason, the matter can be taken to Court where a Judge will make a final decision.
What should I do now?
Call us on 0191 262 5133 to discuss your options or come into the office for some free initial advise. If you would prefer to contact us by email please contact Julie Richardson at firstname.lastname@example.org
There is no obligation to instruct, just get the facts and make an informed choice.