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Divorce is often an incredibly stressful process for couples. Ending a marriage is not something that is done lightly and can often become complicated.
In this article Kiren Dhillon breaks down the process and outlines how a divorce works.
How does the divorce process start?
The divorce starts with the "petitioner", the party who applies for the divorce making the application for divorce to the Court, "the petition". The parties must be married for more than one year. There is only one ground for divorce and that is that the marriage has irretrievably broken down. The petitioner then must rely upon one of five facts to pursue the divorce (adultery, unreasonable behaviour, two years' separation by consent, five years separation or desertion). Once this is decided the petition is drafted and sent to the court to be issued with a £550 court fee and the original or a certified copy of the marriage certificate. The petitioner is entitled as part of the process to claim their costs and the court fee from the respondent.
How does the divorce process work?
We now use the online divorce process which is much quicker than before. The court issues the documentation and the respondent is served with these documents together with an acknowledgement of service form and a notice of proceedings. The respondent should then return the acknowledgement of service form to the court indicating whether or not he or she consents to the divorce or intends to defend the petition. If the proceedings are undefended there will be no need for either to attend court in relation to the divorce proceedings.
If the case is to be defended the respondent must file an 'answer' within 29 days of the date of service. There is a court fee payable for an Answer to be filed. The case then becomes defended. If a case is defended it is likely to take a year to conclude. If the case is not defended and the acknowledgement of service form has been returned, then the petitioner will then apply for the Decree Nisi. This is done by completing a further form. This is known as the application for Decree Nisi stage.
Once submitted all documents have been submitted to the court the case is referred to a District Judge who will look at the divorce papers to see whether all the procedural details are correct and the grounds for divorce are proved. If the judge is satisfied there are grounds for divorce a date is fixed for the pronouncement of the Decree Nisi. There is no need for any parties to attend this hearing unless there is a defended costs claim.
Once the Decree Nisi is granted there is a requirement to wait 6 weeks before the Decree Nisi can be made Absolute. This is undertaken by submitting the relevant form to the court. In exceptional circumstances this 6-week period can be abridged.
In most cases the Decree Absolute should not be applied for until such time as an Order has been approved by the Court dealings with all claims the parties have against each other for capital, income, pension sharing and under the inheritance Act. Neither party can remarry, nor indeed should they take steps to make arrangements for remarriage until the Decree Absolute is obtained.
How long does it take to get divorced?
The usual time period of completion of an undefended divorce where there are no difficulties with regard to service is about 6 months.
Does it make any difference who starts the divorce proceedings?
Usually the party that wants the divorce will petition. In fault-based petitions, namely adultery and unreasonable behaviour almost always the aggrieved party will petition. Sometimes for religious reasons one party may choose to be the petitioner. It should be remembered that the petitioner and not the respondent can claim costs.
Does it make any difference who caused the divorce?
Generally, who caused the divorce has no bearing on the financial settlement or arrangements for the children, but legal advice should be taken on this point prior to issue.
Do we have to try mediation before applying for a divorce?
No. You only need to consider attending a MIAM before issuing financial remedy proceedings.
What types of unreasonable behaviour are valid grounds for divorce?
Your spouse must have behaved in such a way that you cannot reasonably be expected to live with them. Examples of behaviour include, verbal or physical abuse, controlling behaviour, neglect, and lack of intimacy.
What happens if my spouse refuses to get divorced?
Your spouse can defend a divorce by claiming that the facts relied on in the petition are not true, for example, that they did not commit adultery or that you have not been separated for five years. This could mean that you have to delay your divorce, unless you can petition for divorce on a different basis, for example, demonstrating that the marriage has irretrievably broken down and that your spouse's behaviour has been unreasonable. Agreeing the petition prior to issue is the best way forward and often reduces the acrimony. Legal advice should be taken on which fact to proceed with prior to issue. Defending a divorce in this way is not common but it can happen. What is more common is for an aggrieved spouse to make the process of getting divorced more difficult, expensive, and drawn out.
Do we have to agree child arrangements before the divorce can go through?
No, this is not a pre-requisite to divorce. However, it is always good to start discussions about where the children will live and how much time they will spend with the non-resident parent when you do separate and live in separate households.
Do we have to agree a financial settlement before the divorce can go through?
No. However, it is strongly advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the decree absolute is made as some pension rights can be lost if not.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Kiren Dhillon, Senior Associate in the Family Law Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2020.