The actual divorce process is fairly straightforward but complications do tend to arise in respect of children or financial matters.
There are basically 4 stages to a divorce. It is unusual to attend Court and the procedure can take approximately 4-6 months (although it may take longer whilst financial issues are resolved) Anyone can start a divorce if they have been married for over a year. The person who starts the divorce is known as the Petitioner and other person is known as the Respondent.
Stage 1: The Divorce Petition
The Petitioner bases the divorce upon one of the facts for divorce to show that the marriage has broken down. The Petitioner completes the Divorce Petition and lodges it with their Marriage Certificate and the Court Petition fee which is currently £550.00. The Court will then issues the Petition and send it to the Respondent.
Stage 2: Acknowledgement of Service
The Respondent will receive a copy of the Petition and Acknowledge of Service form (form D10). This is short form which basically confirms whether the Respondent wishes to defend the divorce and that they have received the Petition.
Stage 3: Decree Nisi
Once the Acknowledge of Service form has been received or we have other proof your ex-partner has received the paper, we can apply for Decree Nisi. Decree Nisi is the first stage in which a Judge will look at your application, consider the evidence available and if satisfied upon consideration of the evidence certifies that you are entitled to Decree Nisi. A court will set a formal date for the pronouncement of the Decree Nisi in court. It is not normally necessary to attend this court hearing.
Stage 4 : Decree Absolute
This is the final decree of the Court ending your marriage. The petitioner can apply for it 6 weeks and 1 day after the date of Decree Nisi. If there is still an outstanding financial aspect to your case it is usual to delay the applying of Decree Absolute until all aspects of your case have been finalised.
What if my ex-partner doesn’t return the acknowledgement or wants to defend the divorce?
If your ex-partner does not return the Acknowledgement form and you relied on 2 years separation or adultery for the basis of your divorce, problems can occur. If you believe that your ex-partner may defend the divorce or simply ignore the forms that they receive it is advisable to Petition on the basic of unreasonable behaviour.
If you ex-partner doesn’t return the form then they can be served with the necessary forms personally using a Process Server or the Court Bailiff. There is usually an increase of around £105.00 plus VAT for this depending on where your ex-partner lives. This involves an individual physically handing the document to your ex-partner. If your ex-partner does not respond after 7 days then it is usual to continue with the divorce. Notice of intention to defend must be given within 7 days of proof of service of the documents.
Defended divorces are rare, your ex-partner would have to follow a strict procedure as it is costly and unlikely to achieve anything. The court is looking for evidence that the marriage has broken down irretrievably and usually when someone defends the divorce they simply provide more evidence that the relationship has broken down
Grounds to Divorce
The only grounds for Divorce is that the marriage has “irretrievably broken down”. To satisfy the Court there has been an irretrievable break down the Petitioner must prove one of the following five facts:
Fact 1- Unreasonable Behaviour
If your spouse is behaving in such a way that you feel you cannot be reasonably expected to continue to live with them, then you would be able to Petition on unreasonable behaviour. The test is subjective in that you need to show that you find it unreasonable to live with your ex-partner. Unreasonable behaviour does not need to consist of extensive violence, drugs or alcohol addiction or extreme behaviour. A combination of behaviour is usually sufficient. At Spectrum we specialise in drafting petitions that cause minimum amount of upset whilst ensuring that you can still get divorced.
Fact 2 - 2 Years Separation with Consent
If you have been separated from your spouse for 2 years and you both agree that the marriage has broken down, you can reply on this as one of the facts for divorce. On some occasions people have been living in the same household but have been separated for 2 years. It is still possible to obtain a divorce under this fact in such circumstances.
Fact 3 - 5 Years Separation without Consent
If you have been separated from your ex-partner for 5 years but will not consent to the divorce you can issue a Petition on this basic.
Fact 4- Desertion
If your spouse has deserted you for at least 2 years before applying for a divorce and they have not attempted to return in that time you can reply on desertion, this is a fact rarely used.
Fact 5 - Adultery
Adultery is defined as your ex-partner having had sexual intercourse with a member of the opposite sex and that the other ex-partner cannot continue to live with them. Civil partners and same-sex partners are unable to use adultery as a reason for the divorce as sexual intercourse is not possible between partners of the same sex.
Alternatives to Divorce
Judicial Separation is an alternative to divorce if you prefer to legally separate from your spouse without divorcing, you can apply for a Decree of Judicial Separation. This involves a Court pronounces which is virtually identical to a divorce. The different is that the court pronounce a Decree of Judicial separation rather than a divorce and therefore you and your spouse will remain married.
Contract Spectrum should you have any queries or would like to see our Family Solicitor call 01653 916 606