What is a divorce?
Marriage is a legal status. If you wish to end that legal status then you must obtain a decree of divorce which terminates or dissolves the marriage thereby putting both you and your spouse back into the legal position of being single.
You can only get divorced by way of a formal order from the court called a Decree of Divorce.
You can only get divorced if:-
1 Your marriage is legally recognised in the UK;
2 You and your spouse have been married for at least a year;
3 You and your spouse can show that your relationship has irretrievably broken down
Additionally, in order to use the divorce process available in England and Wales you and your spouse must meet specific Rules about residence and how long you have lived in the England and Wales.
Grounds for Divorce
In order to obtain the decree of divorce you must satisfy the court that your marriage has broken down irretrievably. Legally this requires that you prove to the court that one of five sets facts or reasons for the breakdown have occurred. This is known as proving that you have “grounds” for divorce.
One or more of five facts exist to cause the marriage to break down irretrievably. These five facts are:-
Your spouse must have had sexual intercourse with another person and you must find it intolerable to live with your spous
Your spouse must have behaved in such a way you cannot reasonably be expected to live with your spouse.
Two years’ separation with consent
If you have lived apart for more than two years and both agree to a divorce then you can use this fact. Your spouse must agree in writing.
If you have been deserted by your spouse for 2 years you can use this as a ground for your divorce
Five years’ separation
If you have lived apart for more than five years you can use this fact for your divorce without your spouse’s agreement. The only way your spouse can object to a divorce on this fact is if a divorce will cause them extreme financial difficulties.
Once you have chosen the “ground” or “fact” that you are intending to rely on as the reason for the irretrievable breakdown of your marriage you must also provide the court with evidence as to that fact or reason.
Starting the Divorce Process
The person starting the divorce process is known as the ‘Petitioner’ and the other party to the marriage is known as the ‘Respondent’.
If you are the petitioner you need to start the process by preparing a divorce petition which is the document setting out all the information which the court needs to consider your entitlement to a divorce. It is also in effect your request or application for the court to grant you a decree of divorce.
The divorce petition has to be lodged with the local divorce centre for your area. You must also provide the court with your original marriage certificate and the court fee for the divorce process to be started ( currently £550.00)
Before starting the divorce it is always advisable to discuss the divorce with your spouse. If you and your spouse can agree about the divorce petition then it is likely that the divorce will be quicker, easier and less painful.
In particular if the two of you can agree about which fact or ground for divorce will be used this can avoid acrimony. It also helps if you agree the wording of the evidence you provide to the court support the ground which you’re using.
This is particularly recommended if your divorce is based upon the ground of unreasonable behavior or adultery. These grounds are, in essence, blaming the other party for the marriage breakdown. This can be rather unpalatable for the person receiving the Petition and can cause that individual to take a defensive stance thereby defending the Petition and delaying the process in circumstances where they don’t object to the divorce but more about what is being said against them.
When the Court receives your Divorce Petition they post a copy to your spouse.
Your spouse then has to complete an Acknowledgement of Service form in which they confirm they have received the petition; indicate whether they intend to defend the divorce proceedings and give any consents or admissions required ( depending the fact or reason for the divorce)
The Undefended divorce:-
If your spouse is not going to defend the divorce, then the divorce process is relatively straight forward. It should be a paperwork process where no one actually needs to go to the court.
Once you have received a copy of your Acknowledgement of Service, you have to file a statement with the Court confirming the contents of your Divorce Petition is true. The statement is then sent back to the Court and all your papers are put before the Judge who considers whether there is enough evidence to allow the divorce to proceed.
If the Judge agrees, the Court will send you notification of this and will fix a date for your Decree Nisi (the first of 2 decrees of divorce) to be pronounced. This pronouncement takes place in Court and usually no-one attends and the Judge simply reads a list of Decrees Nisi which are being granted on that day.
You can apply for your Decree Absolute (the final decree which is the document which ends your marriage), 6 weeks and 1 day after the date the Decree Nisi was pronounced.
However, usually, you would be advised not to apply for the Decree Absolute until all your financial matters have been settled.
Once you have a Decree Absolute you will need to keep it safe as you will need to show it if you want to re-marry or enter into a civil partnership. It is also evidence of your marital status for formal purposes.
The defended divorce
If the divorce becomes defended then there will be a set court procedure. You will be advised as to all statements and other documents which need to be filed in order to work through the defended court process to obtain a decree of divorce. Very few divorces become defended but you would be advised to have full representation if this happens.