Divorce & Separation

Timetable

After one year of marriage, either party to the marriage may apply for a divorce and is then referred to as the ‘petitioner’. A completed divorce petition and a statement of arrangements for any children is sent to the court, together with the marriage certificate. A court fee (currently £550.00) has to be paid at this stage unless the petitioner is exempt from paying the court fee because of low income.

The divorce process

In most cases you are expected to try to agree the contents of the divorce petition before it is sent to the court. This makes it much more likely that the divorce will proceed without any argument. We can advise you on what particulars of behaviour will be acceptable to the court to show that your marriage has irretrievably broken down. It is not necessary to name a third party to a petition based upon adultery.

The divorce petition

All petitions follow a similar format. The final section, known as the ‘prayer’, which asks for the divorce to be granted, also deals with the question of who should pay the costs of the divorce and what financial claims are being included. There are a number of costs options to consider. Often the petition includes a request for every possible type of financial provision. This is usually advisable for procedural reasons and it does not mean that each claim will be pursued.

Arrangements for the children

The court will not make an order setting out the arrangements for the children in the divorce proceedings. If there is a dispute about the arrangements for the children that cannot be resolved any other way, for example by mediation, then the court may need to decide on the arrangements for the children in separate proceedings.

For further information about children issues on divorce follow the link.

Within a few days of submitting the petition

The court sends a copy of the petition to the other spouse, known as the ‘respondent’, or to their solicitor. A copy of the petition will also be sent to any other person named in it, who may be called the ‘co-respondent’ or ‘party cited’. The court encourages petitioners not to name any third parties because this can complicate the process.

In addition the court sends a form called an ‘acknowledgement of service’ for the respondent to complete and return to the court. This shows that they have received the documents, and asks if they intend to defend the case and whether any claim for costs is disputed.

Within 8 days of receiving the petition

The respondent has to complete and return the acknowledgement of service to the court.

If the respondent intends to defend the petition they must file a defence, known as an ‘answer’, within 29 days of receiving the petition. If an answer is filed, the proceedings then become defended and the following timetable does not apply. The court will normally list the case for a short directions hearing where it will expect the parties to try to agree how the case can proceed without a full court hearing. It is rare that defended proceedings result in a full court hearing, but a delay inevitably occurs in finalising the divorce.

If the respondent or co-respondent fails to return the acknowledgement of service you will need to prove that they have received the petition. We may need to do this by arranging for someone to serve the papers on them personally, or by asking the court to specify some other way of notifying them of the proceedings. The court may decide that there is other evidence, such as a letter mentioning the contents of the petition, which satisfies the court that the respondent has received the petition. Exceptionally the court might agree to dispense with service altogether.

Within a few days of the court receiving the acknowledgement of service

The court sends the petitioner’s solicitor a copy of the acknowledgement.

If the petition is undefended, the petitioner can then apply for the decree nisi or first decree of divorce.

The petitioner has to sign a statement which confirms that the contents of the petition are true. The statement is then filed with the court, together with a request for a date for the decree nisi to be pronounced.

Within the next few weeks

On receiving the request for the decree nisi, the district judge reviews all the papers and, if they are in order, fixes a date for the decree nisi. The solicitors for the petitioner and respondent are notified of a date for the hearing of decree nisi, at which neither party needs to attend unless the decree is disputed or there is an argument about costs. The decree nisi is then granted and a sealed copy is sent to both parties.

Six weeks and one day from grant of decree nisi

The petitioner may apply for the decree absolute, or final decree of divorce, by sending the application to the court.

The decree absolute is usually made within a few days and the marriage is then dissolved. A sealed copy is sent to both parties.

If the petitioner fails to apply for the decree absolute, the respondent may do so 3 months after the date when the petitioner could first have applied. The petitioner will be notified of this application and both parties will usually need to attend court when the judge considers the application. The judge may refuse or adjourn the application if, for example, financial matters have not been resolved and the petitioner would lose important legal or financial rights if a decree is granted.

Sometimes people are not ready to be divorced immediately, but just wish to live separately without going through a formal process. They may wish to live separate lives, sometimes in the same property, and often wish to organise their financial affairs in a way which reflects the fact that they are now living separate lives.

In practical terms, living separate lives in the same household can be difficult to manage for any significant length of time. For separation to count towards periods of time for divorce, the separation has to be substantial and you should take our advice as to what the court is likely to treat as living separately before making any decision about living together in the same property with a view to obtaining a divorce or dissolution of civil partnership based upon periods of separation.
Judicial Separation

A petition for judicial separation does not dissolve the marriage but it does allow an application to be made to the court for some of the financial orders that the court could make in connection with that divorce. For instance, the court does not have power to make a pension sharing order following judicial separation.

The procedure is very similar to obtaining a divorce and the same facts have to be proved. As the process is virtually the same, most people make the decision to proceed with divorce and judicial separation is rarely used except where there is a religious or other objection to divorce.

Where couples decide to separate but do not wish to go through divorce immediately they will often wish to reach agreement as to how financial matters should be resolved, perhaps a sale of the home or the transfer of the home from one to the other in return for the payment of a lump sum. In these circumstances it is important to record the financial agreement in a separation agreement. The separation agreement should record the circumstances of both parties and all the terms of the settlement.

Under English law it is not possible to bind the decision of the court in subsequent divorce. This means that where there is a separation agreement there is no absolute guarantee that a court in subsequent divorce will not make a different financial order from that which has been agreed. However, a court would have to take into account the fact that there has been a separation agreement and in normal circumstances the judge would have to find good reason to depart from a separation agreement entered into by the parties willingly and with a full appreciation of all the facts.

It is important to remember that even though you are separated by agreement that you still remain married. This has important consequences particularly so far as the rights to benefit under pensions or death in service payments and also the right to benefit from your spouse estate in the event of their death. It is therefore important that you make a Will to reflect the change in your circumstances and also make the necessary arrangements with employers and in relation to pension schemes.

For more information about separation and separation agreements, please contact one of our Family Law Specialists – call 01206 835320, email [email protected] or by using the enquiry form at the top of this page.

When both partners cooperate your divorce can be carried out on an undefended basis and we can deal with all the paperwork and formalities for a fixed fee.

If you are unemployed or on a low income you may not have to pay court fees, or may be able to claim back any court fees you have already paid. Please ask us for further details or go to our fee exemption page.

If you are unemployed or on a low income and can show that you have been the victim of domestic abuse, you may be eligible for advice under the legal help scheme, which means the Legal Aid Agency will pay most, if not all, of your costs of getting a divorce. There are conditions attached. Please ask us for further details or go to our legal aid page.

The average divorce takes 4-6 months from filing the divorce petition to obtaining a decree nisi. The decree absolute can be applied for six weeks and one day later but if there are other issues, such as financial claims, to be resolved, then this can delay the final decree.

It is not necessary to reach full agreement about your finances before you are granted your divorce. However, in some cases, such as where you may be entitled to a pension on your spouse’s death or where your matrimonial home is in your spouse’s sole name, you could lose important rights if your marriage is dissolved before these issues are resolved. You should not therefore apply for the final decree without discussing it with us first.

If you are the respondent to the divorce, and are concerned that you may be affected by a final decree, you should speak to us before the date when your spouse can apply for decree absolute to discuss what can be done to protect your position.

For further information about financial issues on divorce follow this link.

You will not have to appear in court unless the proceedings are defended, or there is disagreement about who should pay the costs, about the children, or about financial matters which needs to be resolved at a court hearing.

Family law proceedings, including all the court papers, are usually private. However, the press can publish the fact that your divorce has been pronounced and the ‘fact’ on which your divorce was based. They cannot disclose any details of adultery or unreasonable behaviour.