All divorce cases follow the same route, and the procedure enables a divorce to go through in between three to four months - where the parties co-operate, and there are no hiccups.
Despite numerous reforms, the Law still requires one party to divorce the other. There is (as yet) no simple procedure for both parties to apply for a divorce together, but co-operation can achieve the same end. Divorce is only available once the parties have been married for 12 months.
Why a Divorce?
Most people who come to see us have already made that decision. Where appropriate, however, we can put you in touch with agencies that may help save the marriage, such as Relate: they are experienced also in helping you through the trauma of marriage breakdown.
Many people prefer to wait a while before undertaking divorce. It is possible to obtain Court orders for maintenance or about the children without starting divorce proceedings. Both the Family Proceedings Courts and County Courts have power to grant injunctions to restrain violence outside divorce proceedings.
However, only the Divorce Court can deal with all issues and, also, what is frequently the most difficult - the family home and property. The Divorce Court will usually do so by dealing with the divorce first, then any problems over children, and finally money matters - usually in three separate stages. There is also power, at any stage, to make 'interim' orders regarding protection from violence, contact with children and maintenance.
In theory, the marriage must have "irretrievably broken down" but in practice the Law requires one of five 'Facts' to be proved:
- Unreasonable Behaviour
- Desertion for two years
- Separation for two years with the consent of the other party
- Separation for five years
We will go into the details of how best to obtain a divorce with you, but basically a divorce can be obtained immediately if either of the first two grounds exist. The third ground is very rarely used and the last two require a period of waiting before filing for divorce. There is no need to record the date of separation officially at a Court as they do in the USA.
Most of the work in obtaining a divorce is done on paper. The party filing for divorce is called the "Petitioner" and the other the "Respondent", and all Court papers will show a heading using these titles, which come from the old days when Church Courts dealt with divorce, and a person had to "petition" the Court. It is no longer necessary for anyone to go to Court. The entire procedure can be dealt with through the post. The stages in a typical undefended divorce are as follows.
- Petitioner's solicitor prepares and lodges papers at the Court. There will be a Petition, a Statement of Arrangements for Children, the marriage certificate and one or two standard forms. There is also a fee payable to the Court of £340. (Please note: the marriage certificate is kept by the Court forever and not returned after the divorce. A duplicate can always be obtained from the place where you were married)
- Court checks the papers, then sends out copies with forms of Acknowledgement of Service to the Respondent and (in adultery cases only) the Co-Respondent.
- Respondent[s] complete Acknowledgement of Service forms and return them to Court.
- Court sends copies of these to Petitioner's solicitor.
- Petitioner's solicitor prepares Affidavit of Evidence (a sworn statement to confirm the contents of the divorce papers) and, after this is sworn by the Petitioner, lodges this at Court together with a Request for a Decree Nisi.
- District Judge checks the papers filed so far, and if all is satisfactory, sends a Notice to all parties giving a date for the Decree Nisi and any directions regarding children.
- Decree Nisi - a formal court hearing, held twice a month when several divorces are pronounced. It is just a formality, since the District Judge has given his certificate that the papers are satisfactory, so no-one needs to attend Court. However, if there is a dispute over the payment of costs, this may have to come before the Judge.
- Children Appointment [if there is a dispute or the judge wants further information about the children].
- Decree Absolute can be applied for six weeks and one day after Decree Nisi. It is not automatic, the Petitioner can decide when and if to apply for it. There is a further fee payable of £45. Those on Income Support and Working Families Tax Credit are exempt.
All divorce Petitions follow a standard format, containing information about the marriage, children, grounds for divorce and financial claims being made. In behaviour cases, there must also be a separate sheet setting out details of the allegations of behaviour, which can be a sensitive document to prepare, and which we shall go through carefully with you.
Defending a Divorce
Truly defended divorces are extremely rare, and Legal Aid is almost never granted to defend a divorce, on the grounds that 'it takes both parties to make a marriage work'. There is no facility for simply 'having your say' and usually when the Respondent defends by filing an "Answer" and/or "Cross-Petition" (for which there is a strict timetable) the issues are resolved by negotiation. The Court encourages this by fixing a Mediation Appointment with the District Judge for the parties and their lawyers to attend and sort it out.
This is the first of two Divorce Decrees, and the divorce is not finalised until it is made Absolute six weeks later. Once the Decree Nisi has been pronounced, the Petitioner is committed and cannot withdraw unless the Respondent agrees.
Where there are children of the family (either of the marriage or step-children) under age, the Judge must declare himself satisfied with the arrangements for them before the Decree can be made Absolute, and the final Decree may therefore be delayed until he is.
So, when considering the divorce at Stage 6, the Judge must also consider the information supplied about children. If the Respondent's Acknowledgement of Service reveals there is a dispute over any aspect, or if the Judge feels more information is needed (especially where all parties are still living in the matrimonial home) he may ask for details or fix an appointment for the parties and their solicitors to attend to discuss the arrangements.
There is no Court hearing for this; the Petitioner's solicitor completes a form and lodges it with the Court, when instructed to do so, the earliest possible date being six weeks and one day after the Decree Nisi. The extra day is one of those legal quirks to make sure exactly six weeks have passed. There is a Court fee of £40.
Once that date has gone by, the Respondent has to wait for the Petitioner to apply, but can apply him/herself only after a further three months have expired, for which a special Court appointment - and further fee - is needed.
It sometimes happens that a Petitioner wife does not apply for the Decree Absolute until a financial settlement has been reached. There is no problem with this but if the Petitioner has not applied for the Decree Absolute within 12 months of the Decree Nisi it is necessary to satisfy a Judge by swearing an updated Affidavit that nothing has materially changed since the date of the Decree Nisi.
The Certificate of Decree Absolute is vital if you intend to re-marry - the Registrar of Marriages will want to see the original (usually with a red stamp). If you lose it, the Court can supply another for £1. If you are planning to re-marry immediately after Decree Absolute (only wise if you are the Petitioner) please forewarn us, as there is usually a couple of days delay after we apply for it, but we can make special arrangements if required.