Guide to Divorce:
The divorce itself - what actually happens?
This page just talks about the procedure for the divorce itself. As I mentioned on the Family Law Main Page the divorce itself is only one part of the whole procedure of a married couple splitting up and going their separate ways
The divorce itself won't sort out things like custody of children or any maintenance - those things are sorted out separately (but usually at the same time). I've pulled together all the main issues around married couples splitting up onto our Divorce Main Page. Also please note that on this page we're talking about married couples only (for unmarried couples click here).
So lets go through the procedure for getting divorced....
Am I allowed to get divorced?Firstly you can't get divorced until you've been married for at least a year. Provided you've satisfied that requirement then in order to get divorced you need to show that the marriage has 'irretrievably broken down'. You may already consider that this has happened but the law says that there are only 5 ways (or 'facts') that you can use for showing that the marriage has broken down irretrievably. These are known as the five 'facts' for divorce, and they are:-
- - Ground A - Adultery - This is voluntary sexual intercourse between consenting parties who are not married to each other but one of whom at least is a married person. For this to work one party has to admit to the adultery. Admitting to this does not affect their rights during the rest of the break-up.
- - Ground B - Unreasonable Behaviour - When a married person has behaved in such a way that their spouse cannot reasonably be expected to live with them. This can mean a variety of things ranging from upsetting behaviour to physical abuse. As the behaviour itself has to be stated in the divorce petition this can be quite an upsetting ground to base the divorce petition on - often leading to the other party contesting the divorce (or at least threatening to) because they don't agree to the allegations made.
- - Ground C - Desertion - When a married person has deserted their spouse without their consent and the parties have lived apart for two years. This isn't used very often as most couples prefer to go under fact D - 2 years separation with consent, or if consent isn't there then go for fact E - 5 years separation.
- - Ground D - Two Year Separation with Consent - When a married couple have lived apart for a continuous period of 2 years and both parties consent to the divorce. The consent issue is vital here - without it you cannot have this as a fact for consent. Couples sometimes prefer this as there is no element of 'blame' within the proceedings. If the other party won't consent to it then in the absense of other grounds it may be better to wait for fact E - 5 years separation
- - Ground E - Five Years Separation This is when a married couple have lived apart for a continuous period of at least five years. This fact doesn't require consent by the other person but you do have to satisfy the court that they are aware of the proceedings.
I've decided on one of the grounds - what happens next?
There are 3 main stages involved in the divorce itself - Filing the divorce petition, Applying for a 'Decree Nisi' and getting a 'Decree Absolute'
Step 1 - Filing the divorce Petition
The divorce petition itself is a long document that has to be prepared on your behalf. It contains all the details of the marriage including where and when you got married, details of any children of the marriage (and children from previous relationships), together with details of the fact that you are intending to rely on.
'Filing' actually means sending this to the court along with the court fee (which is currently £340). The court will then serve this document on the other party by post. They are required to formally acknowledge the papers by completing and returning the 'Acknowledgement of service' (If they don't do this then you can apply to have bailiffs service - where a bailiff serves the document on the other party. The bailiff's confirmation can then be used instead of the acknolwedgement of service.). This 'Acknowledgement of Service' is the document that is used by the other party to tell the Court whether they intend ot defend the proceedings or not.
If children are involved you also have to file a Statement of Arrangements for Children with the court at the same time. The contents of this document are usually agreed and signed by both parties prior to the divorce petition being lodged at the court.
Step 2 - Applying for a Decree Nisi
Once the other party has acknowledged the divorce papers or has been personally served by Court Bailiff or Private Investigator, the next stage is to apply for Decree Nisi. This is the first time that a Judge will have sight of the divorce papers and will consider whether you are entitled to a divorce. If so, they will grant a Certificate of Entitlement which will then give the date for pronouncement of the Decree Nisi. If there is any question as to the issue of costs, it will be dealt with at that time.
Step 3 - Getting a Decree Absolute
The third and final stage in the divorce process is the one that wraps it up. 6 weeks and one day after the date of your Decree Nisi you can apply to the court - this is either known as "applying for a Decree Absolute", "Applying for your absolute", or "Applying to make your Decree Nisi Absolute" - they all mean the same thing.
When you apply for the Decree Absolute you fill out a form and send it in to the court. Provided the court doesn't object then they will grant you your decree absolute. The Decree Absolute is the document dissolving your marriage. At this stage, your spouse is no longer your Next of Kin and you should consider making a Will.
As with divorce, the Petition is based on one of five facts but the Court does not enquire as to whether the marriage has irretrievably broken down. The marriage is not dissolved by a Judicial Separation but the you do not have to live with one another and either party can apply for Ancillary Relief.
Most people seeking a Judicial Separation do so as an alternate to a divorce due to religious or ethical reasons.
However, it does not leave you free to marry and it cannot be converted into a divorce.
Other things relating to the divorce
We've got a separate page on looking after the children. Although I said at the start that the divorce itself goes separately to the other stuff this isn't entirely true - if during the course of your divorce the court isn't happy with your plans for looking after the children (which is set out in the Statement of Arrangements for children that you send in with your divorce petition) then they may refuse to grant the divorce. This may cause considerable delay as you'll have to start the whole divorce process again once your plans have been amended. The Court will need to be satisfied that some agreement has been reached or the issues are being discussed direct, via mediation or by way of Court proceedings.
The other big issue around breaking up is matrimonial finances - whether that is splitting up joint property or paying maintenance from one party to the other. Again we've got a separate page dealing with matrimonial finances
If you are worried about how much the divorce process will cost you and if you are not entitled to Legal Help and Help at Court Scheme, we also offer Pay As You Go Divorce which enables to to spread the costs in easy monthly installments. For further information please contact our family department.
We got married in the Maldives/Carribean/Abroad - can we still get divorced here?
Normally yes you can - if:-
Firstly the marriage itself is legally recognised in England & Wales (which it usually is if the marriage was legal in the country in which you got married), and
Secondly you have a permanent home in England and Wales.
If you satisfy both of these conditions then you can usually apply to our courts for a divorce. If you don't satisfy those conditions then contact our family department to ask for more specific advice. If you want to get divorced in another country then you need to look into that country's divorce process - we can't help with that.
We offer a first 30 minute FREE consultation and 8:30am and 5pm appointment times.