The purpose of this leaflet, Divorce FAQ,  is to outline a broad framework of the divorce process, to highlight key points and to set out the sort of timetable to expect.  It is important to realise that issues in relation to financial matters and the children are dealt with separately; please speak to one of our specialist family solicitors for further advice on 01992 558411.

1. Who can start divorce proceedings?
Anyone who has been married for over a year provided one or other of the couple lives in this country; it does not matter where you were married.  If you or your spouse is a foreign national or lives abroad, the rules about whether or not you can divorce in this country are quite complex; please ask for further advice.

2. On what grounds can a divorce application (previously known as divorce Petition) be started?
The only ground for divorce is that the marriage has irretrievably broken down, but irretrievable breakdown must be established by relying on one of five “facts” laid down by law.  These are that:
a) Your spouse has committed adultery and you find it intolerable to continue living together; or
b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together (“unreasonable behaviour”); or
c) Your spouse has deserted you for a continuous period of 2 years or more; or
d) You and your spouse have been living separately for 2 years or more, and your spouse agrees to the divorce; or
e) You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

3. What if your spouse wants a divorce but you do not?
If you think that there is a possibility of reconciliation, you should consider going to a service such as RELATE (or Marriage Guidance/counselling).  Please do not forget that your GP can also assist you if you are finding matters difficult to cope with emotionally.  Even if divorce proceedings have already been started, they can be stopped at any time before Decree Absolute.

People sometimes wish to formalise their separation without divorcing, for example for religious reasons or to preserve widow’s benefits that may be lost following divorce.  Judicial Separation proceedings are very similar to divorce proceedings but the difference is that at the end of the proceedings you are still legally married and therefore unable to remarry.  If you think this may be appropriate, please discuss this with us.

4. What does the divorce application actually look like?
Every application follows the same form.  It contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down.  It will also state the “fact” on which it is intended to rely.

The application does not have to include every detail of the breakdown of your relationship.  For example, an application based on unreasonable behaviour may need only a brief outline to be given.  Not saying all that might be said will not generally prejudice you, and we generally aim to draft the application in such a way that it will not exacerbate the situation.  We often try to reach agreement regarding the contents of the application before it is issued to avoid the divorce proceedings becoming unnecessarily acrimonious.  We follow the Code of Practice of Resolution (formerly the Solicitors’ Family Law Association).

5. How are issues about the children and financial matters dealt with?
It is important to understand that the divorce process does not automatically resolve issues regarding the children and financial matters.

Any difficulties regarding the children will have to be dealt with separately; we will advise if this is necessary.

With regard to finances, the application will include a section (known as the “Prayer”) which will include a request for the divorce to be granted.  It may also include a request for Orders for financial provision, but this does not necessarily mean that issues relating to finances will have to be resolved by attendance at Court.  We can advise how financial matters can best be resolved in your case.  We fully endorse the use of alternative forms of resolution such as Mediation and Collaborative Law in aiming to resolve any dispute.  (Please see separate factsheets on each.)

It is not necessary for a financial agreement to be reached by the time the divorce is final, although in some cases we will advise that Decree Absolute is not obtained until matters are resolved to reserve a spouse’s interests in the event of death.  Decree Absolute does not prevent either party from making a financial claim in the future, although your right to make an application to the Court for a financial order will be lost if you remarry and you have not; included a “Prayer” in your divorce application or filed an “answer” if you are the Respondent, made an application for financial remedy before you remarry.

6. Will I have to go to Court?
Generally, you will not have to attend Court to obtain a divorce.  However, in some cases, you may have to attend Court to deal with issues regarding the children or financial matters.

7. Are the proceedings public?
As of 27th April 2009, The Family Proceedings (amendment) (2) Rules 2009 F1857 (County Court and High Court) and the Family Proceedings Courts (miscellaneous amendments) Rules 2009 S12009 no 858 (Magistrates Court) and two practice directions, provide for accredited representatives of newsgathering and reporting organisations and any other unaccredited person whom the Court permits to be present at hearings in all family proceedings except hearings conducted for the purpose of judicially assisted conciliation or negotiations. The rules also provide that the Court can exclude such representatives. Whilst the media will be allowed to attend family proceedings; the Court will have power to restrict both attendances by them and what can be reported. These rules do not bring about a new concept in reporting restrictions as currently there are at least ten different statutes (rules) which govern what the media may report upon in different types of proceedings. If you have concerns in relation to the media being present in any proceedings involved with your case, please speak with me.

8. How much does the divorce cost?
We will discuss with you the likely costs of obtaining a divorce in your case, but it is important to remember that the costs of the divorce itself do not include the costs of dealing with issues regarding the children and financial matters, and these costs are likely to represent the bulk of the costs you will incur.

9. How long does it take?
The following page describes the procedure in a straightforward, undefended divorce.  Difficulties can sometimes arise, particularly in the early stages, for example, if the Respondent does not acknowledge service of the divorce application.  We can advise how any difficulties can be dealt with in your case.  In an undefended case, we would expect to reach Decree Nisi in around four to six months.

Please speak to one of our specialist family solicitors for further advice on:

    • 01992 558411 – Olive McCarthy/Karen Johnson/Lisa Honey

>

Remember …

  • Divorce proceedings can be stopped; please do not hesitate to tell us if you wish to do so.
  • Even if there are no grounds to issue divorce proceedings immediately or you decide to wait until you have been separated for two years, it is important that you take legal advice immediately regarding the finances and discuss with us the overall financial position.  It is not generally advisable to deal with assets such as the house piecemeal and we will need to consider the whole picture.  You should not sign any legal documents without first taking advice.

Divorce Procedure

  1. Either spouse may start the divorce.  He or she is referred to as “the Petitioner”.  The Divorce application is completed and then sent to the Court with the marriage certificate and the Court fee. We will generally advise that the contents of the petition should be agreed with the other spouse prior to issuing proceedings in order to keep the process as amicable as possible.
  2. The Court issues a Notice of Proceedings.  A copy of this is served on the other spouse (referred to as “the Respondent”), normally by posting it to him or her, with a copy of the Divorce application and Statement of Arrangements and a form called the Acknowledgement of Service.
  3. The Respondent is asked to complete the Acknowledgement of Service and return it to the Court within 7 days and should consult a solicitor promptly if he or she is served with divorce proceedings.  The form asks the Respondent whether it is intended to defend the divorce, whether any claim for costs is disputed.
  4. If the Respondent intends to defend the divorce, he or she must file a defence (called an “Answer”) within 28 days of receipt of the application.  This is a strict time limit.
  5. When the Respondent (or solicitor) returns the Acknowledgement of Service to the Court, the Court sends a copy to the Petitioner’s solicitors.  The Petitioner’s solicitor then prepares a statement for the Petitioner to sign confirming that the contents of the Application are true.
  6. The Petitioner’s solicitor sends the statement to the Court and asks the Court to fix a date for Decree Nisi to be granted.  The District Judge then looks through the papers and decides if the Petitioner is entitled to a divorce.
  7. The District Judge then certifies that the Petitioner is entitled to a divorce and the Court sets a date for pronouncement of Decree Nisi.
  8. Once Decree Nisi has been granted, the Petitioner may apply for the final decree (“Decree Absolute”) after 6 weeks and one day have passed.  This step is not automatic and an application must be sent to the Court with the Court fee.  If the Petitioner does not apply for Decree Absolute, the Respondent can do so after a further three months have passed from the date when the Petitioner could first have applied.

Please speak to one of our specialist family solicitors for further advice on:

  • 01992 558411 – Olive McCarthy/Karen Johnson/Lisa Honey