Who can start Divorce proceedings?
Anyone who has been married for over a year, provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding year. If either party has already issued proceedings in another Country then you cannot issue a further application in England and Wales. It does not matter where the couple were married.
On what grounds can a Divorce Petition be started?
The only ground for divorce is that the marriage has ‘irretrievably broken down’ but there is a complication: divorce will only be granted if one of the five facts laid down by law proving irretrievable breakdown is established.
What are the facts?
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 two 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.
Note: Whilst the procedure for ending a Same Sex Marriage is much the same there is one exception, the ‘fact’ of adultery is NOT applicable.
Timetable – After one year of marriage
a) Either spouse may start the divorce. They are referred to as the “Petitioner”. The Petition is completed and sent to the Court together with the Marriage Certificate. A fee, currently £550.00, is payable unless the Petitioner is eligible for a full or partial exemption from payment of the fee upon completion and acceptance by the Court of a separate application form (EX160) for which supporting financial documentation is required.
b) The Court sends a copy of the Petition and an Acknowledgement of Service form to the other spouse, referred to as the “Respondent”. A copy of the Petition is also sent to anyone named in an 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.
c) Within seven days of being served with the Petition, the Respondent should return the “Acknowledgement of Service” form to the Court. The form asks the Respondent whether or not they intend to defend the Petition, whether or not any claim for costs is disputed and (if appropriate) whether they ‘consent’ to the divorce.
d) Within a few days of receiving the Acknowledgement of Service from the Respondent, the Court sends a copy of the form of Acknowledgement of Service to the Petitioner’s Solicitors.
e) The Petitioner’s Solicitor prepares a Statement for the Petitioner to sign, confirming that the contents of the Petition are true. It will also state whether any circumstances have changed since the filing of the Petition. It is then sent to the Court with a request for a date for the first decree of divorce (“Decree Nisi”) to be pronounced.
f) If no Acknowledgement of Service is returned to the Court, proof that the Respondent and any named Co-Respondent have received the Petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for someone to deliver the Petition to the Respondent and any named Co-Respondent personally or exceptionally, obtaining a Court Order that proof does not need to be given. This is called “dispensing with service”.
g) The District Judge looks through the papers and if they seem in order gives a Certificate for the Decree Nisi to be pronounced. Both the Petitioner and the Respondent (through their Solicitors if applicable) are then advised of the date fixed for Decree Nisi. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. The couple do not have to attend Court but either may attend if they wish to.
h) The Petitioner may apply for the final decree (“Decree Absolute”) by sending the appropriate form to the Court six weeks and one day after the date of Decree Nisi. This step is not automatic. The decree will be processed and may be available as quickly as the same day.
i) Three months after the Petitioner could first have applied for Decree Absolute the Respondent may apply for the Decree Absolute if the Petitioner has not already done so.
How long does it take?
This varies from Court to Court. Undefended divorces take approximately 5 to 6 months. The financial side of divorce may take longer – 6 to 18 months.
Despite the Decree Absolute in the divorce, until there is a Final Court Order terminating each party’s financial claims against the other, either party can always claim against the other or from their Estate after death. If you remarry then your claims against your former husband/wife are automatically terminated upon your remarriage, although they can still bring a claim against you provided they have not themselves remarried. Therefore, if you have an outstanding financial claim against your first husband or wife, do not remarry without first getting legal advice. Any claim to each others’ pension automatically ends on pronouncement of Decree Absolute.
Try to save your marriage – for guidance and/or counselling contact Relate (0300 100 1234) to help with your relationship.
Remember:- The divorce can be stopped at any time, up until the point of pronouncement of Decree Nisi, thereafter it would have to be a mutual decision between yourself and your spouse that neither of you will apply for the Decree Absolute.
This can take place where the parties do not wish to divorce, for example on religious grounds but wish to formalise their separation and be ‘relieved’ of the requirement to live together. The process is very similar to that for divorce, save that only one Decree is pronounced – that of Judicial Separation and the parties remain married.