Divorce Advice

A basic guide to divorce

Divorce is never easy, but at least the procedure does not have to be difficult. The breakdown of a marriage can be a very emotional and hard time in a person’s life and the thought of going through the legal process of ending it can be even more daunting. The word “Divorce” can be disheartening to some but a sense of relief to others. The fact that many questions remain unanswered in so many people’s mind can make the entire procedure even more stressful. Below are questions most frequently asked by people experiencing marital difficulties …..

I want to get divorced. What are the first steps?
To get divorced in England and Wales you have to show that you have been married for at least one year. This can be proven by producing your marriage certificate. If this is the case then you must prove that the marriage has irretrievably broken down.

How long does it take to get divorce?
This all depends on the complexity of each matter as every marital breakdown is different. A straightforward divorce however can take approximately between 6 – 9 months.

On what grounds can I divorce my spouse?
There is only one ground for getting divorce and that is that the marriage has “irretrievably broken down”. You must satisfy the Court that the marriage has irretrievably broken down by showing that one of the following five facts have occurred:-
1. Your husband/wife has committed adultery
2. Your husband/wife has behaved unreasonably
3. Your husband/wife has deserted you for a period of 2 years
4. You have been separated from your husband/wife for a period of 2 or more years
5. You have been separated from your husband/wife for a period of 5 or more years

If my spouse has committed adultery do I have to name the other party?
No. This is optional and can be agreed with your spouse beforehand. It is advisable to avoid naming the third party to avoid unnecessary complications and conflict. Naming the other party will have no bearing or impact on the proceedings.

Do I have to go to Court if I decide to divorce my spouse?
Not necessarily. It is very rare for there to be a requirement to attend court. There are certain exceptional circumstances but the majority of cases do not require you to attend court.

What is the procedure for getting divorce?
Your solicitor will draft on your behalf your divorce petition which is sent to your local court and issued there. The court will serve the divorce papers upon your spouse who will have a specific amount of time to respond to the divorce papers. This is known as “Acknowledgement of Service”. Once this has been done you are required to make an application to the court for your “Decree Nisi”. This is an application for an Order from the court confirming that there are sufficient grounds that the marriage has irretrievably broken down. Decree Nisi will then be pronounced at court (you do not have to attend court). From the date Decree Nisi is pronounced you will have to wait 6 weeks and a day before you are able to apply to the court for Decree Absolute. Your Decree Absolute is the final order of your divorce proceedings and only once this is granted has your marriage formally come to an end.

Am I entitled to spousal maintenance for myself?
The longer the marriage the more chance you have of obtaining maintenance. There are many aspects to take into consideration e.g. your future earning capacity and the standard of living you enjoyed together with your spouse when you were together. Assuming you’ve been married for longer than a year, either you or your spouse can start the legal process of divorce by filing a petition with the court. It has to show that the marriage has irretrievably broken down in one of five ways, which are:

Adultery

Behaviour which the other spouse finds unreasonable

Two years’ separation and both spouses agree to divorce

Five years’ separation without agreement

Desertion

Around 75% of divorces are based on adultery and unreasonable behaviour as these are the two routes that don’t require you to be separated for two years or more. Only minimal details need to be given in the petition as long as there is sufficient information to satisfy the judge that you are entitled to a divorce. If the cause of the marriage breakdown is adultery, for example, it is no longer necessary in most courts to name the co-respondent (the “other” man or woman) and, some say, it’s better not to. Solicitors can advise what is necessary depending on your circumstances. The petitioner also indicates at this stage whether there will be an application for ancillary relief (financial orders from the court). Importantly, the petitioner must also complete a statement of arrangements for any children, which ideally should be agreed in advance with the other spouse.

Accepting or contesting divorce

Once the petition is received by the other spouse (the respondent) he or she has eight days to return the acknowledgement of service to the court, stating whether he or she agrees to the divorce; intends to defend it; objects to any claim for costs in the petition and, if relevant, agrees with the arrangements for the children. If the respondent wants to contest the divorce, they have 29 days to file an answer or to file a cross-petition (i.e. if they disagree with any of the statements in the petition). Fewer than 1% of divorces are defended as this can result in long expensive court proceedings with little to gain. If the divorce is based on two years’ separation with consent, the respondent needs to give their agreement. The respondent can contest a petition based on five years’ separation by arguing that financial matters have to be settled or they will suffer financial disadvantage if the divorce is granted. In that case, the court will have to decide on those matters before the divorce can be finalised.

Returning the petition

If the acknowledgement of service is returned properly, the next step is for the petitioner to swear an affidavit under oath confirming the facts in the petition in front of an officer of the court, or a third party solicitor. This will then go to a judge who will check it and, if satisfied, the judge will certify whether he or she is entitled to a divorce and whether the arrangements for the children are satisfactory.

The decrees

The court will then fix a date for the decree nisi. On that date, the judge will read out in court the names of the couple getting divorced and the grounds. Neither husband nor wife have to be in court for this and the court will send a copy of the decree and any agreed order for costs to each of the divorced couple and their solicitors. The petitioner can then apply to the court for the decree absolute, which is the final decree of divorce. That can be done after six weeks and one day from the date of the decree nisi.

Stopping a divorce

The petitioner is essentially in the driving seat in the process – he or she can stop the divorce at any stage before the decree absolute is issued. Once the decree nisi is granted, the divorce will not move forward without an application for the decree absolute. However, that does not stop the respondent applying to the court if they want to proceed with the divorce and have the decree absolute granted. They must wait a further three months to do this (six weeks and a day plus three months). It will usually then be granted to the respondent unless the petitioner successfully argues that it would cause them severe financial hardship. If there is a delay of more than twelve months between the decree nisi and decree absolute the court will want an explanation of the reasons for the delay. Once the decree absolute is granted the couple are divorced and are both free to re-marry.

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