What is the divorce process

We want to ensure that all of our clients receive the best possible advice whilst going through the process of divorce which is why we always recommend that one of our solicitors is involved in handling the Divorce on your behalf.  However we are also aware that our clients wish to fully understand the process themselves prior to embarking on their journey through the process. 

If you are considering filing for a divorce or you’ve been served with divorce papers and what some free impartial advice call our expert team on 0203 9252 301. They’ve years of experience and are more than happy to discuss your options over the phone at your convenience.

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1. Decide what the reason for the divorce is

In order to obtain a Decree Absolute (a Divorce) in England and Wales the person filing the Divorce Petition, pursuing the Divorce, must cite one of five reason in support of the reason why your marriage has irretrievably broken down. The five reasons are set in Law and cannot be changed or altered therefore one of the following reasons must be cited:

Adultery

The term adultery is used by many people to describe a partner as having been unfaithful and having had a relationship with another person outside of a marriage. However, the legal definition of Adultery is somewhat more limited. The legal definition is simply a husband having sexual intercourse with a woman other than his wife or a wife having sexual intercourse with man other than her husband.”

The use of Adultery as a reason for a marriage having irretrievably broken down cannot be used in circumstances where the couple continue to live together as a couple for 6 months after the act was discovered.

Unreasonable Behaviour

There are a number of circumstances where the use of Unreasonable Behaviour can be cited on a Divorce Petition, some of these circumstances are;

Physical Violence

Verbal Abuse – such as personal insults or threats

Drunkenness

Drug Taking or Abuse

Refusing to pay House Keeping

Separation (two years)

Where you and your husband or wife have lived separate lives for over 2 years, even if living in the same household and the other party agrees in writing citing separation for 2 years or more can be used as a ground for Divorce.

However whilst living in the same home is not an issue, it must be that you have not lived as a couple during that period for example eaten and slept apart for this period of time.

Both parties to the Divorce must agree to cite this reason, in writing, in order to be able to rely on the same.

Where the other party is not prepared to agree it is advisable to discuss matters with one of our family law solicitors to ensure that your Divorce proceedings progress smoothly and without any risk to additional costs being incurred.

Separation (five years)

Where Husband and Wife have been separated for five years or more, either party can cite this as a ground for Divorce without the permission or agreement of the other party.

Desertion

This is a rarely used reason as it’s use can be complicated and hard to establish good reason however the reason can be used if your husband or wife has left you, without agreement, and without good reason and that has been for a sustained period of time of 2 years over a period of 2.5 years.

There is a caveat that you can still claim desertion if you have lived together for up to a period of six months within this period.

Due to the complexities of this reason for a Divorce it is recommended that you contact us to discuss this further and obtain legal advice before proceeding.

2. Fill out and Submit the Divorce Petition

If you are the person who wishes to end your marriage you will be the person who will need to complete and Submit (known as “file”) the Divorce Petition with the Court. This can be done in two ways, either online or by sending the petition in triplicate to your local Divorce Centre/Family Court. If you are citing the reason of Adultery for the irretrievable breakdown of your marriage you will need to send 4 Copies of your Petition to the Court if sending by post.

In order to file your Divorce Petition you will require your original marriage certificate or an official copy of it. You can apply for an official copy of your marriage certificate at https://www.gov.uk/order-copy-birth-death-marriage-certificate. If we assist you with your divorce you will need to provide us with a copy of this to file with your Divorce Petition. Once you have filed your petition, the Court will consider the same and ensure that it is correctly completed and your application will be issued. You will be notified by the court that your application has been accepted and issued and return a copy of it to you and keep a copy on file.

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3. Service of the Petition

In normal circumstances where you are aware of your spouse’s current address the Court will serve your petition on your behalf directly on your spouse and any persons named within the Petition in the case of adultery.

There are special circumstances where service cannot be effected by the court. To discuss these please call us on 0203 9252 301.

4. Responding to the Petition

If you have been served a Divorce Petition you have 8 days to respond to the same. It is important that you do so in order to avoid additional costs and complications. There are two ways to respond, either allow the petition to proceed without defending it, or stating that you wish to defend it and provide the grounds for doing so.

If you wish to Defend the Divorce Petition or your spouse has indicated that it is their intention to do so having filed your petition then we advise that you obtain Legal Advice at this stage and contact us on 0203 9252 301, it is often the case that things become rather complicated and drawn out without the correct advice.

David Durkin-Finch

Senior partner

Jacqueline Tanner

Head of litigation

5. Think about Financial Arrangements, Property and Children

It is important to remember that obtaining a Divorce, by way of a Decree Absolute from the Court, is just part of the process in dissolving a marriage and many other aspects of both parties lives need to be dealt with. In particular and at very least the following areas need to be considered, agreed or negotiated between both Husband and Wife.

Child Care Parental Rights &amp Custody

Child Maintenance

Spousal Maintenance Payments

Property & Pensions

Inheritance outside of Marriage

These matters are dealt with in separate proceedings that normally run alongside or shortly after filing for Divorce. Simply filing for a Divorce does not deal with the remaining elements of the lives of a separating Husband and Wife. Dealing with the above areas of the law if very complicated and it is important that from the outset you obtain specialist legal advice to protect your position. We work with all of our clients to obtain the very best outcome possible, within the law, in their personal circumstances. No Divorce or Financial proceedings are the same and we work hard to understand your personal circumstances and those of your family.

6. Apply for Decree Nisi

A decree Nisi is an interim order of the Court in Divorce Proceedings which gives notice of the intention to Divorce of the Husband and Wife and provide a date upon which the marriage will end unless a good reason not to grant a divorce is produced.

An application to the Court for a Decree Nisi is required using the appropriate Form. Once the Court has received this application and granted the Decree Nisi you are able to apply for a Decree Absolute 6 weeks and a day thereafter.

7. Apply for Decree Absolute

You must complete a Decree Absolute form and file the same with the Court. The Court will then ensure that the appropriate time has passed, that being 6 weeks and a day, from the date of the Decree Nisi. The Court will also consider whether any “good reason” has been submitted so as to not grant the Decree Absolute. If no good reason, or valid good reason, has been received then the Decree Absolute will be granted and you will be officially Divorced.

The Decree Absolute is a very important document that you must keep at all times as this will be required if, sometime in the future, you wish to remarry.